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The Supreme Court ruled Monday that a federal civil rights law written in the 1960s also covers gay and transgender workers, delivering a significant and surprising victory for LGBT rights.
Justice Neil Gorsuch, one of President Donald Trump’s appointees, delivered the opinion in a six-to-three decision by the Court. Chief Justice John Roberts and the Court’s four left-leaning justices were also in the majority.
Job discrimination based on sexual orientation and gender identity is legal in 25 states. At stake in Monday’s cases was whether Title VII, the federal civil rights statute prohibiting employment discrimination, covers gay, lesbian, and transgender workers.
The consequences may reach beyond the workplace. The Trump administration and conservative legal groups warned the disputes have implications for dress codes and separate-sex bathrooms. Maintaining sex-specific policies will be legally tricky if the courts extend Title VII to LGBT workers, those groups told the justices.
Monday’s disputes present the first gay-rights questions the Supreme Court has decided since Justice Anthony Kennedy’s retirement in 2018. Kennedy wrote all four of the Court’s modern gay rights precedents. Those rulings struck down anti-sodomy laws, the Defense of Marriage Act, and established a constitutional right to same-sex marriage.
Kennedy cast the deciding vote in two of those cases, but his successor, Justice Brett Kavanaugh, had no record to speak of on LGBT issues as a lower court judge. Monday’s decisions offer the first hints as to how the Court’s newly entrenched conservative majority will approach gay and transgender rights in the years to come, suggesting that Kennedy’s retirement has not blunted gay-rights momentum at the Court.
The three plaintiffs in Monday’s disputes claim they were fired for discriminatory reasons. The first case involved two gay men, Donald Zarda and Gerald Bostock, who say they were terminated because of their orientation. The second case involves a trans woman called Aimee Stephens, a funeral director who asked to present as a woman in the workplace. The funeral home refused and dismissed Stephens.
Title VII of the 1964 Civil Rights Act bans employment discrimination based on race, religion, and other characteristics. The law does not specifically list gay or transgender people as protected groups. However, Title VII does ban discrimination “based on sex.” The question in both cases was whether the ban on sex-based discrimination also covers sexual orientation and gender identity.
There is no evidence that Congress meant for Title VII to encompass anti-LGBT bias. Indeed, Congress has rejected legislation that would amend Title VII to that effect almost two dozen times. Beginning in 2017, three federal appeals courts nonetheless concluded that Title VII bars discrimination against gay, lesbian, and transgender people.
Those courts explained that anti-LGBT bias necessarily involves sex. Therefore, they reasoned, it is already prohibited by Title VII’s ban on sex-based discrimination. Stanford Law School professor Pamela Karlan, who represented the plaintiffs before the Supreme Court, advanced that point with a simple example at oral arguments in October.
“When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” Karlan said. “The employer has … discriminated against the man because he treats that man worse than women who want to do the same thing.”
It’s a tricky argument for the conservative justices, since it purports to rely on “textualist” legal principles. Legal conservatives say judges should focus on the plain text of the law, not the intent behind it. In this case, the plaintiffs say what matters is the plain text of Title VII—not the understanding of Congress—and the text prohibits sex-based discrimination, including LGBT bias.
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