In an historic win for the LGBTQ community, the Supreme Court ruled 6-3 that firing someone for being gay or trans violates Title VII of the Civil Rights Act.
Writing for the court, Justice Neil Gorsuch—a Trump nominee who had been promoted by the right-wing Federalist Society—wrote the opinion, which Chief Justice John Roberts and the four liberal justices joined. He wrote that “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.”
Three cases were consolidated into the single opinion. Bostock v. Clayton County was about the firing of Gerald Bostock after his employer (an agency of Clayton County, Georgia) found out he played in a gay softball league. In Altitude Express v. Zarda, Donald Zarda was fired from his job as a skydiving instructor when his employer learned he was gay. And in R.G. & G.R. Harris Funeral Homes v. EEOC, Aimee Stephens, who had been living as a man, was fired after she told her employer she had been diagnosed with gender dysphoria and would henceforth be living as a woman.
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While acknowledging that Congress did not have LGBTQ+ people in mind when it passed the law in 1964, Gorsuch—true to form—focused on the written text of the law, which contains a broad prohibition on discriminating “because of sex.” That means that any time sex (as defined, in biological terms, in 1964) is part of the reason for a hiring or firing decision, that decision is illegal.
So, for example, “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.”
That is the precise argument made by a host of LGBTQ+ organizations, and strongly opposed by the Trump administration.
More broadly, Gorsuch concluded, “an individual’s homosexuality or transgender status is not relevant to employment decisions.” The result is historic, and quite surprising to most court-watchers (including this one).
True, at oral argument, Gorsuch did note that sex was surely a “contributing cause” in the three firings. I speculated at the time that he might be the “swing vote” in these cases.
But there is no question that Congress did not have gay or trans people in mind when the law was passed. So from an ideological point of view, the case presented a conflict between two conservative judicial philosophies: textualism (what the words on the page actually say) and originalism (what the writers of the law meant).
Gorsuch—and, in joining the opinion, Roberts—made a clear statement for the former. “Only the words on the page constitute the law adopted by Congress and approved by the President,” he wrote.
Gorsuch also quoted from a 1998 opinion by his predecessor, Justice Antonin Scalia, regarding a case of male-male sexual harassment. “’[A]ssuredly,’ the case didn’t involve ‘the principal evil Congress was concerned with when it enacted Title VII,’” Gorsuch quoted Scalia as saying. “’But,’ the Court unanimously explained, it is ‘the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’”
That same logic applied here. The text of the law broadly prohibits discrimination “because of sex,” and that includes penalizing people for being gay or trans “[n]ot because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”
The result was celebrated by LGBTQ+ advocates.
James Esseks, director of the ACLU’s LGBTQ & HIV Project, which served as counsel to the families of Aimee Stephens and Donald Zarda, said, “This is a huge victory for LGBTQ equality… 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.”
Lucas Cameron Vaughn, co-chair of the National Trans Bar Association, said that “there can be no doubt about the importance of this decision for the LGBTQ+ community. Transgender and gender-nonconforming Americans have every reason to celebrate this major step forward.”
The decision also comes in the context of a highly historic, and fraught, month for civil rights, racial justice, and LGBTQ+ equality.
First, of course, are the national wave of racial justice protests, which, among other things, have begun to highlight the disproportionate discrimination and violence faced by transgender women of color. On Sunday in New York City, for example, thousands gathered for a Black Trans Lives Matter rally in front of the Brooklyn Museum, mourning the recent murders of Dominique ‘Rem’Mie” Fells, 27, of Philadelphia, and Riah Milton, 25, of Cincinnati.
Like police violence against Black and Brown people, violence against transgender women of color is not a new phenomenon, but the attention being paid to it now is unprecedented, and perhaps a sign of hope. These struggles intersect with one another. Referring to the 1969 Stonewall Riots in its statement, the ACLU noted that “over 50 years ago, Black and Brown trans women, drag queens, and butch lesbians fought back against police brutality and discrimination that too many LGBTQ people still face.”
Second, even as Pride Month celebrations were canceled across the country due to the COVID-19 pandemic, the Trump administration rolled back protections for transgender people in health-care (on the anniversary of the Pulse nightclub massacre, no less).
Under the new rule, it is now perfectly legal for doctors, hospitals, pharmacies, and other health-care providers to refuse service to transgender people—not only gender-confirmation surgery or hormones, but any service of any kind.
That rule may now, itself, be against the law.
Technically, it is based on Title IX of the Civil Rights Act, and today’s Supreme Court cases are about Title VII. However, the rule is based on the exact statutory interpretation that the Court has now soundly rejected. “Unlike other bases of discrimination, the categories of gender identity and sexual orientation… are not set forth in those statutes,” the rule states. That’s exactly the theory that Gorsuch, who had been promoted by the Christian Right during his nomination process, threw in the garbage today.
There may be no Pride parades this year but LGBTQ+ people and their allies finally have something to celebrate.
