On June 15, 2020, the U.S. Supreme Court ruled 6-3 (with Justices Neil Gorsuch, Jon Roberts, Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the majority) that the federal prohibition against discrimination on the basis of sex in Title VII of the 1964 Civil Rights Act also prohibits discrimination based on sexual orientation or on gender identity.
The three cases decided by the Court involved Gerald Bostock, a gay man who was fired from his county government job as social worker for children after they learned that he played in a gay softball league; a gay man, Daniel Zarda, who was fired from his job as a skydiving instructor after his employer found out he was gay; and Aimee Stephens, a transgender woman who was fired from her job at a funeral home after she told them that she would be completing her gender transition as a woman. Sadly, both Zarda and Stephens passed away recently, but their estates continued the legal fights for them.
Despite winning marriage equality throughout the U.S. five years ago, many did not know that it was still legal to fire an lesbian, gay, bisexual, transgender, and queer (LGBTQ )person because of their sexual orientation or gender identity in 25 of the 50 states in the U.S. It was estimated that 4 of 10 of LGBTQ Americans lived in one of those 25 states, and could have been fired from their jobs at any time for being LGBTQ. This decision will provide that protection immediately in all 50 states.
In writing for the majority, Justice Gorsuch began his opinion noting the historic milestone of the 1964 Civil Rights Act: “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.”
Justice Gorsuch continued: “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.”
Accordingly, Justice Gorsuch concluded: “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex….homosexuality and transgender status are inextricably bound up with sex. Not 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.”
However, conservative Justice Gorsuch left open several issues for future litigation: “The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today….Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”
As well as how religious organizations might seek exceptions or exemptions: “the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society….how these doctrines protecting religious liberty interact with Title VII are questions for future cases too….while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”
Despite these caveats about how this decision might influence future decisions, Justice Gorsuch concludes: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
In dissent, Justice Samuel Alito, joined by Justice Clarence Thomas, attacks fellow conservative Justices Gorsuch and Roberts: “A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous….The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated….The Court tries to cloud the issue by spending many pages discussing matters that are beside the point….The arrogance of [the Court’s] argument is breathtaking….The Court’s argument is not only arrogant, it is wrong. It fails on its own terms….repetition of an assertion does not make it so, and the Court’s repeated assertion is demonstrably untrue….In sum, the Court’s textual arguments fail on their own terms….The Court’s arguments are squarely contrary to the statutory text….Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were understood to mean at that time. To paraphrase something Justice Scalia once wrote, ‘our job is not to scavenge the world of English usage to discover whether there is any possible meaning’ of discrimination because of sex that might be broad enough to encompass discrimination because of sexual orientation or gender identity….The Court makes a tiny effort to suggest that at least some people in 1964 might have seen what Title VII really means….To call this evidence merely feeble would be generous….no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project….It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implications for the interpretation of legal rules….The Court’s extensive discussion of causation standards is so much smoke…Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on textualist grounds.”
In 2003, when the U.S. Supreme Court overturned sodomy statutes as unconstitutional in Lawrence v. Texas, conservative Justice Antonin Scalia predicted that one of the consequences of the decision would be marriage equality, which then happened 12 years later in Obergefell v. Hodges.
In this decision, Justice Alito now predicts: “What the Court has done today – interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity – is virtually certain to have far reaching consequences. Over 100 federal statutes prohibit discrimination because of sex….transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify…[there could be] the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex…an athlete who has the physique of a man [sic] but identifies as a woman could claim the right to play on a women’s professional sports team….[we could compel] a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith…[there could be a] challenge [to] employer-provided health insurance plans that do not cover costly sex reassignment surgery…After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination….The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures….By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review….Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for
Not to be outdone by Justice Alito, the Court’s newest Justice, Brett Kavanaugh submits his own dissent, name-dropping Justice Antonin Scalia and citing Federalist Papers to prove his conservative credentials: “we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise ‘neither Force nor Will, but merely judgment’. [quoting Federalist Paper No. 78] Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result….In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway. If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty. As James Madison stated: ‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator.” [quoting Federalist Paper No. 47]….courts must follow ordinary meaning, not literal meaning. And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase. There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes. As Justice Scalia explained, ‘the good textualist is not a literalist’….Justice Scalia explained the extraordinary importance of hewing to the ordinary meaning of a phrase: ‘Adhering to the fair meaning of the text (the textualist’s touchstone) does not limit one to the hyperliteral meaning of each word in the text’….In other words, this Court’s precedents and longstanding principles of statutory interpretation teach a clear lesson: Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does….To reiterate Justice Scalia’s caution, that approach misses the forest for the trees….Bottom line: Statutory Interpretation 101 instructs courts to follow ordinary meaning, not literal meaning, and to adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase….I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome….Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate – judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way.”
In an attempt at quotable prose, Justice Kavanaugh also writes: “Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”
Fortunately, President Barack Obama had more persuasively drawn the connections between these movements in his 2013 Inaugural Address:
- “We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.
- It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law for if we are truly created equal, then surely the love we commit to one another must be equal as well. Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote. Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity, until bright young students and engineers are enlisted in our workforce rather than expelled from our country. Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia, to the quiet lanes of Newtown, know that they are cared for and cherished and always safe from harm.
- That is our generation’s task, to make these words, these rights, these values of life and liberty and the pursuit of happiness real for every American.”
Finally, in a condescending conclusion, Justice Kavanaugh praises the gay and lesbian community for their advocacy (while completing ignoring transgender and bisexual communities and advocates, include one of the plaintiffs and several of the attorneys in the three cases before the Court), in his dissent from granting them justice that they sought: “It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn. It is true that meaningful legislative action takes time – often too much time, especially in the unwieldy morass on Capitol Hill….Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate….Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit – battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”
Given the events of the past few weeks after the murder of George Floyd and new national consciousness about the persistence of systemic and structural anti-Black racism, it is especially important for the LGBTQ communities to recognize the contributions and sacrifices of Black Americans in securing the passage of the 1964 Civil Rights Act that this decision is based on. In the early 1960’s, it was only after the U.S. public saw television images of Black Americans peacefully protesting for their civil rights being attacked by police officers with fire hoses, police dogs, and batons that public opinion changed to support a federal law prohibiting discrimination.
We now are living in another potential turning point moment in U.S. history, when so many people, companies, and organizations across the U.S. are rising up to declare once again that Black Lives Matter, and to call for an end to the continuing police violence against Black Americans such as Rayshard Brooks in Georgia, George Floyd in Minnesota, Breonna Taylor in Kentucky, Tony McDade in Florida, and so many others.
All LGBTQ persons should acknowledge and reflect on how connected our struggle for equality and freedom is to the continuing struggle of Black Americans against the systemic racism that persists, and continues to have literally life and death consequences. As LGBTQ people, we should respond to the Court decision with a renewed commitment to continue to speak out, march, stand up, act up, and fight back against racism, sexism, homophobia, and transphobia in all their forms. We should work even harder at making the U.S. actually live up to its promise of equality and freedom for everyone.
Ignatius Bau 