U.S. Supreme Court Rules Title VII Bars Discrimination Based on Sexual Orientation or Gender Identity

In a landmark 6-3 ruling, the U.S. Supreme Court held that Title VII of the 1964 Civil Rights Act protects LGBTQ employees from discrimination in the workplace based on sexual orientation or gender identity. The Court held this type of discrimination falls squarely under Title VII's prohibition of discrimination based on "sex."

The ruling is particularly significant in the 26 states that until now had no law prohibiting employment discrimination based on sexual orientation or transgender status. It is also significant because Trump-appointee Justice Neil Gorsuch authored the opinion, with fellow conservative Chief Justice John Roberts joining in the majority.

Moreover, the Court's unambiguous holding that the language "because of sex" bars discrimination based on gender identity or sexual orientation has broad implications that extend beyond the employment arena, to numerous laws and regulations that use the same language. In the current political and cultural climate, this decision also serves as a reminder of the power of the Supreme Court to bring about seismic changes in civil rights.

Facts of the Cases

The Court's opinion in Bostock v. Clayton County addressed appeals in three separate cases from different federal circuit courts.

• 1. Gerald Bostock worked for Clayton County, Ga., as a child welfare advocate and was fired when his employer learned he played in a gay softball league; 
• 2. Donald Zarda worked as a skydiving instructor at Altitude Express in Long Island, N.Y., and lost his job days after mentioning he was gay; and
• 3. Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Mich., and presented as a male when she got the job, but was fired six years later after telling her employer she was going to "live and work full-time as a woman."

All three sued under Title VII, which makes it unlawful to discriminate against an individual "because of such individual's . . . sex." 42 U.S.C. §2000e–2(a)(1) (emphasis added). In the Bostock case, the 11th Circuit held that Title VII does not prohibit employers from firing employees because of their sexual orientation. In contrast, the Zarda and Stephens cases, the 2nd and 6th Circuits held that Title VII does prohibit employers from firing employees because of their sexual orientation and transgender status. The Supreme Court took all three appeals together to resolve the circuit court split.

The Court's Analysis

The Court's majority opinion began by analyzing the key language in Title VII. While the parties disputed what definition to apply to the term "sex," the Court adopted the employers' narrower definition as "referring only to biological distinctions between male and female." Next, the Court turned to Title VII's "because of" standard, concluding that it would violate Title VII if an employee's sex was even one of several "but-for causes" for an employer's decision.

From there, the Court concluded; "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."

The Court illustrated its logic with the following example:

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, and the affected employee's sex is a but-for cause of his discharge.

With respect to transgender individuals, the Court offered the example of two otherwise identical employees who identify as female—one who was identified as a male at birth (and is transgender) and one who was identified as female at birth:

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.

The Court also cited three prior opinions where it found Title VII violations when an employer (i) refused to hire women with young children but would hire men with young children;¹ (ii) required women to make larger pension fund contributions than men to account for women's longer average lifespans;² and (iii) a male plaintiff was singled out by his male co-workers for sexual harassment.³ This last case, Oncale, was particularly important to the majority's holding, not only because it involved same-sex sexual harassment, but also for its holding that it did not matter "whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination."

From these cases, the majority opinion drew three key principles:

• 1. It is "irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it."
• 2. A "plaintiff 's sex need not be the sole or primary cause of the employer's adverse action."
• 3. "An employer cannot escape liability by demonstrating that it treats males and females comparably as groups."

The Court majority explained why the many arguments advanced by the employers and dissenting justices were not valid. Some examples include:

Dissent: Discrimination on the basis of sexual orientation and transgender status aren't referred to as sex discrimination in ordinary conversation.
Majority: Ordinary conversations take place in a very different context than examining Title VII's reach .

Dissent: Congress has several times considered amending Title VII to add sexual orientation to the list of protected characteristics, "so doesn't that show it is not already included under the law?"
Majority: No, the Court has long ignored "[a]rguments based on subsequent legislative history."

Dissent: Isn't sexual orientation conceptually distinct from sex? For example, when an employer discriminates against both men and women for being transgender or gay, isn't the employer treating the sexes equally?
Majority: It does not matter how the employer treats "groups" for purposes of a discrimination claim; the question is, what was the employer's intent with respect to an individual employee? "There is simply no escaping the role intent plays here: Just as sex is necessarily a 'but-for' cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking," Gorsuch wrote.

Dissent: Isn't the Court fundamentally changing a massively important piece of legislation?
Majority: No, this is just a novel application, as Title VII was "written in starkly broad terms" and "has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them."

Dissent: Won't this have negative consequences because the law defines many things based on "sex," like unisex bathrooms or locker rooms?
Majority: Maybe, but these other laws and questions are not before the Court.

Dissent: What about conflicts with the freedom of religion?
Majority: This is important, but "worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute's passage." These questions have to be answered in the contexts in which they appear, and none is before the Court.

Additional Implications and Questions

While the full implications of this groundbreaking decision remain to be seen, a few observations can be made. First, the decision came down by a majority of 6-3, rather than a single swing vote. Second, the majority opinion came from a conservative appointee, Justice Neil Gorsuch, with Chief Justice John Roberts joining, contrasting the case with prior controversial rulings that have fallen along party lines.

Justice Gorsuch also applied a decidedly unsentimental tone and reached his result not as a matter of policy but through strict textualism. In fact, the most poignant language came from Justice Kavanaugh's dissent, in which he acknowledged, "Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and law. ... They have advanced powerful policy arguments and can take pride in today's result."

On its face, the decision is about sex discrimination in the workplace. For employers in states that already had protections under state law against discrimination based on gender identity or sexual orientation (such as Washington, Oregon, California, and New York), the decision may seem insignificant. However, the Bostock reasoning will almost certainly lead to the expansion of protections against discrimination based on sexual orientation or gender identity in other forums. For example, the Trump administration has made clear its intention to exclude gender identity as a protected classification under the law by narrowing the definition of sex to include only biological sex as assigned at birth.

On June 12, the Administration finalized a regulation stating that the Affordable Care Act's prohibition against sex discrimination does not apply to individuals who are transgender. This new regulation will most certainly be vulnerable to attack based upon the Bostock ruling. So, too, will regulations or orders limiting protections for transgender employees of federal government contractors, rescinding the Obama-era guidance protecting students' rights to use the bathroom or locker room that corresponds to their gender identity, and banning transgender individuals from the military.

The decision could also impact efforts in other areas where LGBTQ individuals still face discrimination, such as in education and housing and, for transgender individuals, participation in collegiate sports. As Justice Alito warned in his dissent, "Over 100 federal statutes prohibit discrimination because of sex." Presumably, all should be read to encompass sexual orientation and gender identity under Bostock.

Justice Gorsuch also noted three Title VII exceptions that arguably intersect with religious opposition to LGBTQ protections. Among them, the "ministerial exception" and the 1993 Religious Freedom Restoration Act. These exceptions, wrote Gorsuch, will "merit careful consideration" in later cases.

Before Bostock, it was legal to fire employees based on their sexual orientation or gender identity in 26 states. The question remains how this landmark decision, which extended rights to millions of workers, will fit into the current political and cultural moment. While the focus of the Black Lives Matter protests has largely been police violence, numerous recent marches have focused on the Black transgender community. Although the Bostock decision addresses only one of the barriers this community faces—discrimination in employment—this decision demonstrates that the Supreme Court remains a powerful vehicle for change.

FOOTNOTES

1 Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam).
2 Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978).
3 Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998).