Pittsburgh Post-Gazette

Supreme Court protects LGBTQ workers

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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.

 ?? Chip Somodevill­a/Getty Images ?? Joseph Fons, holding a Pride Flag, stands in front of the U.S. Supreme Court building after the court ruled Monday that LGBTQ people cannot be discipline­d or fired based on their sexual orientatio­n.
Chip Somodevill­a/Getty Images Joseph Fons, holding a Pride Flag, stands in front of the U.S. Supreme Court building after the court ruled Monday that LGBTQ people cannot be discipline­d or fired based on their sexual orientatio­n.

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