WASHINGTON, D.C.—In a landmark ruling issued today by the U.S. Supreme Court, employers are barred from discriminating against current and potential employees on the basis of sexual orientation or gender identity. The ruling essentially finds that the use of the word "sex" in Title VII of the 1964 Civil Rights Act, which bars discrimination in employment "because of such individual's race, color, religion, sex, or national origin," should be legally interpreted to mean "sexual orientation" and "gender identity," though dissenting Justices Samuel Alito and Brett Cavanaugh had argued for a more literal interpretation of the word, with Kavanaugh adding that, "I believe that it was Congress's role, not this Court's, to amend Title VII."
Perhaps of interest is that the decision was authored by Trump-appointed Justice Neil Gorsuch, who was joined by Chief Justice John Roberts as well as Associate Justices Sonya Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
Currently, 22 states as well as the District of Columbia already have laws on the books which prohibit sexual discrimination of gays and transgender people in the workplace. However, the ruling is likely to have a far more encompassing reach than simply outlawing sex discrimination in employment, and may spill over into the sheaf of cases of businesses discriminating against non-hetero and non-cisgender individuals who wish to obtain such services as wedding photography, flower arrangement and wedding cakes, the latter including a case out of Colorado, a decision on its merits of which the high court essentially sidestepped in 2018 in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The title case referenced in the current Supreme Court decision is Bostock v. Clayton County, Ga., involving child welfare advocate Gerald Bostock, whose leadership at the county agency won several commendations—but he was fired "for conduct unbecoming a county employee" after he began participating in a gay recreational softball league. But the high court had actually considered two other cases dealing with similar themes which it incorporated into the Bostock ruling: Altitude Express Inc. v. Zarda, a case out of New York where skydiving company Altitude Express had fired Donald Zarda for having attempted to calm a female skydiver's fears of his holding her close while jumping by telling her he was "100 percent gay"; and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, in which transgender woman Aimee Stephens, who originally presented as male when hired by the funeral home but came out during her employment and began wearing dresses to work, and was fired for that reason. (Stephens died in early May.)
Most of the objections and concerns of those who have (and likely will) oppose(d) this decision were dealt with in Justice Gorsuch's opening paragraphs of his 172-page decision:
"Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.
"Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. 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. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit."
Indeed, the Harris Funeral Home case is one which has sparked frequent defenses of the business by religio-conservative organizations such as the Family Research Council, which released a statement early today which reads in part, "The court's insistence that a Christian funeral home must retain a transgender employee threatens its freedom to operate according to its understanding of sexuality that is rooted in the facts of science and human history."
"Allowing judges to rewrite the Civil Rights Act to add gender identity and sexual orientation as protected classes poses a grave threat to religious liberty," claimed FRC head Tony Perkins. "We've already witnessed in recent years how courts have used the redefinition of words as a battering ram to crush faith-based businesses and organizations."
Such negativity was countered by far more positive commentary.
“Black queer and transgender people understand the necessity of federal protections more than most," wrote David J. Johns, Executive Director of the National Black Justice Coalition, in a press release. "We predominantly live in Black communities, many of which are in the South, where most states lack protection from discrimination in both healthcare and employment. This morning’s ruling gives hope to the many Black queer and transgender people in the South, and in small rural and isolated communities, who have been shut out of employment opportunities because of their actual or perceived sexual orientation or gender identity. The ruling is significant and the Trump administration’s continued attacks on our communities and the recent murders of Dominique (Ree’mie) Fells and Riah Milton are sobering reminders of how much work there is left to do. ... We need Congress to fully protect LGBTQ/GL people from discrimination and pass full federal non-discrimination protections through the Equality Act. Until our laws remedy systemic racism and inequality, and our culture catches up to those laws, our movement’s pursuit of LGBTQ/SGL equality is far from done."
"In this moment of the national COVID-19 health crisis and vitally important nationwide demonstrations in support of Black lives and against systemic racism, it’s heartening to have good news from the Supreme Court," wrote Mara Keisling, Executive Director of the National Center for Transgender Equality. "Today is a watershed moment for fairness and affirms that LGBTQ people are, and should be, protected from discrimination under federal law."
However, she cautioned, "While today’s decision ensures that LGBTQ people are protected from discrimination at work—and very likely in other key areas such as education, housing, and health care—other forms of discrimination remain legal in many states. ... With today’s ruling, we still need Congress and state lawmakers across the country to catch up with the Supreme Court and the American people and fully protect transgender people from discrimination in all aspects of daily life, by passing full federal non-discrimination protections."
Pictured: Aimee Stephens being interviewed after the Supreme Court argument in her case (her wife, in pink, also attended)
