The US Supreme Court has ruled that Title VII of the Civil Rights Act 1964, which bars employers from discriminating against employees on the basis of sex, includes gay and transgender people.
This marked the most important gay rights case to come before the Supreme Court since it recognised same-sex marriage in 2015 and the first time the Court had considered a case involving transgender issues. This decision is also significant because it was supported by a six to three majority; two conservative judges, Neil Gorsuch and Chief Justice John Roberts, joined liberal justices Ruth Bader Ginsburg, Elena Kagen, Stephen Breyer and Sonia Sotomayor in the majority. The other three conservative judges, Brett Kavanaugh, Samuel Alito and Clarence Thomas, dissented.
The decision combined three separate cases: Altitude Express Inc v Zarda, Bostock v Clayton County, and RG & GR Harris Funeral Homes v EEOC. Mr Zarda lost his job as a skydiving instructor after revealing to a female client that he was gay ahead of a tandem jump. He thought that this would make her more comfortable with their close physical contact. Mr Bostock, a child social services coordinator, was fired after his boss discovered he had joined a gay softball league. In the third case, Aimee Stephens was fired from her job at a funeral home after she sent letter to her colleagues, outlining her intention to transition from male to female.
The cases focused on the definition of sex in the 1964 Civil Rights Act. The plaintiffs, along with various civil rights groups and companies, argued that discriminating against gay and transgender workers was inherently based on their sex.
Writing the opinion of the majority, Mr Justice Gorsuch agreed 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 a different sex.” He went on to say that, “there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex…..By discriminating against homosexuals, the employer intentionally penalises men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”
The employers in the case argued that Congress did not intend for the law to protect gay and transgender people when it passed the law. The majority agreed on this point but said what really mattered was the text of the law. In his dissent, Mr Justice Alito was critical of the “illogical” reading of Title VII and claimed that the Court had basically re-written law. He said, “there is only one word for what the court has done today: legislation.” He continued that, “In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity.”
Given that in 28 states it is still not against the law to discriminate against employees based on sexual orientation or gender identity at a state level, this interpretation of federal legislation will grant all US citizens the same protection.
Click here for the decision.