"' .... 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."