"' .... it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.' - Justice Neil Gorsuch"
By Megan Kern
Fifty years ago in June, the first Pride march took place in New York City as a protest and call for the liberation of members of the LGBTQ+ community. Now, on June 15, 2020, the Supreme Court of the United States decided that sexual orientation and gender identity discrimination are prohibited under Title VII of the Civil Rights Act. This decision ultimately confirmed the “simple but profoundly American idea” that every human being deserves to be treated with equal respect and should be able to take pride in who they are. Arguably, the crux of anti-discrimination legislation in the United States was the Civil Rights Act of 1964. The act ended segregation in public places and Title VII of the act banned discrimination by employers and labor unions on the basis of race, color, religion, sex, or national origin. Title VII also created an Equal Employment Opportunity Commission with the power to file lawsuits on behalf of workers who had been wrongfully treated or terminated. Over the past fifty years, many disputes have arisen due to the unclear meaning behind the term “sex” in Title VII. Many have argued that at the time the act was written, “sex” only referred to whether someone was male or female. Today, according to UCLA’s Williams Institute, the LGBTQ+ community is comprised of roughly 1 million workers who identify as transgender and 7.1 million lesbian, gay and bisexual workers. Thus, over the past fifty years, countless people and LGBTQ+ advocacy groups have argued that “sex” also includes sexual orientation and gender identity.
“...first of many victories to come....”
Until recently little more than twenty states had laws preventing job discrimination due to gender identity and sexual orientation, thus leaving nearly thirty states with no laws protecting LGBTQ+ employees. But thanks to the Supreme Court’s recent decision, workplace discrimination based on sexual orientation and gender identity is now outlawed nationwide.
The Supreme Court’s holding of Bostock v. Clayton County, Georgia, was a combined ruling in three cases — two cases brought by Gerald Bostock and the estate of Donald Zarda about discrimination against gay people, and one case brought by Aimee Stephens about discrimination against transgender people. Justice Neil Gorsuch, President Trump’s first appointee to the Supreme Court, wrote the opinion and was joined by Chief Justice John Roberts and the Court’s four liberals. The central dispute in all three cases was whether the term “sex” in Title VII includes sexual orientation and gender identity. Although the law doesn’t mention “sexual orientation” or “gender identity” explicitly, Justice Gorsuch concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Furthermore, Gorsuch stated 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 different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids."
The Supreme Court’s decision is a huge milestone for the LGBTQ+ community, and Alphonso David, the president of the Human Rights Campaign, tweeted that the decision is a "landmark victory for #LGBTQ equality." Sarah Kate Ellis, the president of the LGBTQ advocacy group GLAAD (Gay and Lesbian Alliance Against Defamation), joined and said that the decision "is a step towards affirming the dignity of transgender people, and all LGBTQ people." Other influencers and supporters of the LGBTQ+ community, like Tim Cook– CEO of Apple and “one of the only openly gay leaders of a Fortune 500 company”– took pride and celebrated the decision. SAG-AFTRA, the Screen Actors Guild- American Federation of Television and Radio Artists, also applauded the Supreme Court ruling and stated that “This is one of the most significant decisions about employment law in many years and a long overdue blow to state-sanctioned discrimination.”
Every LGBTQ+ employee in the United States is now protected against workplace discrimination, but the impact of this ruling doesn’t stop there. Other federal laws like the Fair Housing Act, Equal Pay Act, and Equal Protection Clause of the Constitution all prohibit discrimination based on “sex.” Thanks to the Supreme Court’s Bostock ruling, eventually all of these areas of law should include sexual orientation and gender identity in their interpretation of “sex” as well. Although future cases will have to be decided to effectively change these other federal laws, LGBTQ+ people can celebrate their first of many victories to come, and finally, truly take pride.
Megan Kern, JD candidate at Case Western Reserve University, School of Law in Cleveland, Ohio.