Supreme Court protects LGBTQ workers
WASHINGTON — The Supreme Court ruled Monday that federal anti-discrimination laws protect gay and transgender employees, a major gay rights ruling written by one of the court’s most conservative justices.
Justice Neil Gorsuch and Chief Justice John Roberts joined the court’s liberals in the 6-3 ruling. They said Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex,” includes LGBTQ employees.
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Justice Gorsuch wrote. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Gorsuch and Chief Justice Roberts were joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
“This is a huge victory for
LGBTQ equality,” said James Esseks of the American Civil Liberties Union. He added: “The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights. The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and
against the law.”
For 50 years, courts interpreted Title VII’s prohibition on discrimination because of sex to mean only that women could not be treated worse than men, and vice versa, not that discrimination on the basis of sex included LGBTQ people.
The dissenting justices — Clarence Thomas, Samuel Alito and Brett Kavanaugh — agreed with that view.
“If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation — not to mention gender identity, a concept that was essentially unknown at the time,” wrote Justice Alito, who was joined by Justice Thomas in his dissent.
The dissenters said their colleagues were amending the law, not interpreting it.
“The court has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth,’” Justice Kavanaugh wrote, quoting a previous case, in his own dissent.
But he added: “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”
Justice Gorsuch, President Donald Trump’s first nominee to the court, said that was wrong. The text of the law makes clear that gay and transgender workers who are fired are fired because of sex, he wrote.
“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Justice Gorsuch wrote. “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
It was exactly the message lawyers for the gay and transgender employees had made, and it was striking that it came from one of the court’s most conservative justices.
Justice Gorsuch acknowledged lawmakers in 1964 were probably not protecting gay and transgender workers. But the words of the statute they wrote do that, he said.
“Likely, they weren’t thinking about many of the act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees,” he wrote. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
Justice Gorsuch said how the decision might affect religious employers was for future cases, as it was not an issue in the cases before the court.
The court combined two cases to consider whether gay workers are protected under the law. Gerald Bostock claimed he was fired from his job as a social worker in Clayton County, Ga., after he became more open about being gay, including joining a gay softball league. Donald Zarda said he was fired as a skydiving instructor after joking with a female client to whom he was strapped for a tandem dive that he was gay. (Mr. Zarda died in 2014.)
The transgender case was brought by Aimee Stephens, who worked for years at a Michigan funeral home before being fired after informing the owners and colleagues of her gender transition. Ms. Stephens died of kidney failure in May, after seeing her case argued at the Supreme Court in October.