The Supreme Court’s Landmark Decision on L.G.B.T.Q. Rights

By · Jun 22, 2020 · 3 min read

Last Monday, the Supreme Court ruled, 6-3, that the Civil Rights Act of 1964 protects L.G.B.T.Q. employees from workplace discrimination, writing in the majority opinion that “An employer who fires an individual merely for being gay or transgender defies the law”.

Title VII of the Civil Rights Act, the focus of the case, prohibits employment discrimination on the basis of “[the employee’s] race, color, religion, sex, or national origin”, and the court holds that such language also prohibits discrimination against L.G.B.T.Q. employees. Even if its drafters in 1964 didn’t believe they were protecting L.G.B.T.Q. employees, the majority, written by Justice Gorsuch, holds that “legislative history” (i.e. the intentions and expectations of those who wrote the law and how it has been previously applied) “has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts.”

Gorsuch is a major proponent of textualism, a theory that states the meaning of the law turns expressly on the text itself, and takes no consideration of sources outside of it: the intentions of the lawmakers, what problem the law was designed to remedy, etc. Many were surprised by his decision—he was appointed by the Trump administration, who urged the court to rule against L.G.B.T.Q. workers, and is strongly tied to the conservative Federalist Society, who cast the case as a clash between religious liberty and the nondiscrimination laws—but it appears that his principles of textualism outweighed his own ideology (which is the purpose of textualism, to allow for neutral rulings based on the law itself rather than whatever a judge prefers).

The ruling lays out that discrimination against L.G.B.T.Q. employees fall under discrimination on the basis of sex. Gorsuch writes that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” and thus, discriminating or firing L.G.B.T.Q. employees on that basis constitute a violation of Title VII.

He lays out this rule in two examples:

“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. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex…

“Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

He uses these examples to explain that, though the employers themselves wouldn’t state the employees’ sex as a cause for dismissal—the male employee isn’t fired because he is male, he is fired because he is gay—firing someone for those reasons “requires an employer to intentionally treat individual employees differently because of their sex.”

The decision was based on three cases: Bostock v. Clayton County, Ga, in which Gerald Bostock was fired for “unbecoming” behavior after joining a gay softball league; Altitude Express Inc. v. Zarda, where Donald Zarda, after working for several reasons with the company, was fired after mentioning he was gay, and R.G. and G.R. Funeral Homes Inc. v. Equal Employment Opportunity Commission, where Aimee Stephens was fired after telling her employer she was transgender.

Before Monday, it was legal in 29 states to fire workers for being L.G.B.T.Q., and the ruling marks a major victory for L.G.B.T.Q. rights across the country. Despite its monumentality, it is also a decision largely in line with public opinion: 72% of Americans said that nondiscrimination laws should apply to L.G.B.T.Q. employees, with majorities even among Republicans (60%) and independents (70%).

Religious Exemptions Might Still Be Granted

However, it remains unclear whether this ruling will end workplace discrimination against L.G.B.T.Q. employees in its entirety. The Supreme Court, in the fall, will consider the case of Fulton v. City of Philadelphia, where a religious group (Catholic Social Services) claims the right to violate anti-discrimination laws because of their religious beliefs. Their argument is based in the “free exercise” clause of the Constitution, as well as a previous decision that stated the government could not substantially impose on someone’s religious beliefs without “compelling state interest.”

Therefore, while protections for L.G.B.T.Q. workers have now been enshrined, it is possible that exemptions and religious exceptions may be carved out of those protections as well.

The full text of the decision, written by Justice Gorsuch, may be read here, joined by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Justices Alito, Thomas, and Kavanaugh dissented.

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