DISCRIMINATION AGAINST LGBTQ+ PEOPLE FOUND UNLAWFUL UNDER TITLE VII

By Derek J. Demeri 

Sometimes allies come from strange places. This week, it came from a Trump Supreme Court appointee in Bostock v. Clayton County. In a 6-3 landmark opinion, the Supreme Court of the United States ruled that Title VII protects individuals from discrimination because of sexual orientation or gender identity. The opinion was written by Justice Gorsuch, who was appointed by President Trump, and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito,  Justice Thomas, and Justice Kavanaugh dissented from the ruling.  

The ruling came from three separate cases that the Court consolidated into one. In the first case, Gerald Bostock had worked for Clayton County, Georgia as a child welfare advocate until he was fired for conduct “unbecoming” of a county employee, a reference to his sexual orientation. The Eleventh Circuit found nothing wrong with the firing and held that Title VII did not protect sexual orientation. 

In the second case, Donald Zarda worked as a skydiving assistant in Long Island, New York. When he told a female customer he was gay to make her feel more comfortable about being strapped together (at least, as comfortable as anyone could get before jumping out of a plane,) the company he worked for fired him. Unlike the Eleventh Circuit, the Second Circuit found that Title VII protected him from discrimination targeting his sexual orientation. Regrettably, Mr. Zarda passed away in 2014 due to a different skydiving accident, but his family carried on the case through his estate. 

In the third case, Aimee Stephens had worked as a funeral director in Michigan until she was fired in 2013. When Ms. Stephens came out as transgender and shared with her employer that she would be showing up to work consistent with her gender identity, the employer immediately fired her. The Equal Employment Opportunity Commission filed a claim on her behalf and Ms. Stephens’s case reached the Sixth Circuit, which found that Tile VII protects people from discrimination on the basis of gender identity. Regrettably, Aimee Stephens also passed away last month before learning the Supreme Court’s good news. 

In an outcome that was far from predictable, Justice Gorsuch eloquently outlined on behalf of the Court’s majority why Title VII protects people from LGBTQ+ based discrimination. The Court’s role, he started with, is to interpret the words that Congress adopts and the President signs into law. Relevant here, Title VII prohibits acts that “discriminate . . . because of . . . sex.” Justice Gorsuch went to great lengths to explain that “because of” is a very broad standard satisfied by but-for causation. That is, but for sex the discrimination would not happen. The discrimination does not have to be the only reason—or even the primary reason—it simply just has to be a reason. 

Next, Justice Gorsuch tackled the word “discriminate” and addressed whether the word required the courts to look to treatment to groups as a whole or to individuals. Title VII should not protect LGBTQ+ people, according to hate groups such as the Alliance Defending Freedom, because employers would treat gay men the same as gay women and transgender women the same as transgender men. Without addressing how this line of logic completely erases non-binary individuals and bisexuals, Justice Gorsuch unequivocally found that Title VII focuses on the individual’s experience and not what a protected class experiences as a whole in the macro-level. 

Turning to the final word in the relevant language, Justice Gorsuch, on behalf of the majority of the Court, proclaimed: “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” As an example, Justice Gorsuch imagines two employees identical in all-but one respect. Both are attracted to men but one is a man and the other is a woman. Firing the man because of that reason is firing him “because . . . of sex.” Same applies to two employees where one was assigned male at birth but identities as female and the other whose gender assigned as birth matches their gender identity. The discrimination happens because of sex. Even if the employer’s goal is to discriminate purely on the basis of sexual orientation or gender identity, that discrimination cannot happen without “intentionally treat[ing] an employee worse based in part on that individual’s sex.” For Justice Gorsuch, these cases are a straight forward application of the words in a statute.  

One primary argument against this holding is that if Congress wanted to include sexual orientation and gender identity as protected classes, it would have done so when it passed the Civil Rights Act in 1964, or at anytime after. However, as the majority of the court notes, there is no canon of statutory interpretation that requires creating an exception to a general rule just because it was not explicitly mentioned. Sexual harassment is a distinct concept from sex discrimination, yet it still falls under the broad protection afforded by Title VII. 

The dissenting argument that legislators in 1964 did not imagine protecting the LGBTQ+ community when passing the Civil Rights Act lost any validity once it was scrutinized. Relying on this argument would require selectively enforcing the plain language of the statute because the result seems unexpected. And even then, Justice Gorsuch noted through some historical examples, it is not so clear that Title VII’s protection for LGBTQ+ people would have been entirely unexpected. Most legislators in 1964 probably never imagined that the sex provision in Title VII would lead to protection for straight male employees from sexual harassment—but that is exactly what happened decades later. 

Despite the momentous decision that this was, Justice Gorsuch ended the opinion noting what the case does not address. It does not address other federal or state laws that prohibit sex discrimination. It does not address sex-segregated bathrooms, locker rooms, or dress codes. “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.” Still, there’s no denying these cases will have an impact on other laws (in fact, Justice Alito continently made a list in his dissenting opinion of the 167 laws that prohibit sex discrimination). 

There’s also some concern that Justice Gorsuch was setting up a future potential case that imposes exceptions based on religious beliefs. In Masterpiece Cakeshop v. Colorado, an opinion he signed on to, the contours between freedom of religion and anti-LGBTQ+ discrimination law were left unclear by the Supreme Court. As Justice Gorsuch stated here, “[the Religious Freedom Restoration Act of 1993] might supersede Title VII’s commands in appropriate cases.”  

Given that 4.1 million LGBTQ+ workers live in states that do not have protections against workplace discrimination, this week’s decision is an important piece towards economic justice for the LGBTQ+ community. Importantly, however, this decision is far from the end of the community’s long journey to achieve lived equity. The new protections mean nothing if non-binary people and transgender people (particularly transgender women of color) are not getting hired at places of employment in the first place. 

Even in states that already have protection, like New Jersey, the law does not always translate into justice. As the New Jersey Governor’s Transgender Equality Task Force noted in its November 2019 report, more than one quarter of New Jersey people who are transgender or non-binary were discriminated in the past year at their place of employment because of gender identity discrimination. For many in this situation, relying on sex work therefore becomes the only means of survival and that has its own vulnerabilities due to the criminalization of that line of work. 

For now, we will take our victories. We will take our allies, even if they may not be an ally tomorrow. After the hell that has been this year, we certainly needed a victory and this one was hard fought. But tomorrow the fight carries on and we will continue to carry on this valuable and necessary work to make lived equality universal. 

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