Supreme Court Interprets Federal Law to Prohibit LGBTQ+ Discrimination

Nearly 60 years ago, the U.S. Congress passed a monumental bill that had been championed by figures such as Martin Luther King, Jr., and President John F. Kennedy. The Civil Rights Act of 1964 invokes comprehensive anti-bias law at the federal level, addressing voter equality and nondiscrimination. Based on the 14th Amendment, which guarantees American citizens “equal protection of the laws,” the Act includes Title VII, which directly addresses workplace discrimination. Title VII deems it unlawful for employers to “discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.”

The Congress of the 1960s could not envision the world as it is today. But, according to U.S. Supreme Court Justice Neil Gorsuch in his opinion on Bostock v. Clayton County, “the limits of the drafters’ imagination supply no reason to ignore the law’s demand.”

The vast cultural differences between 1964 and today are at the heart of the U.S. Supreme Court’s June 15, 2020 ruling on Bostock v. Clayton County, a consolidation of three disputes regarding LGBTQ workplace discrimination. The decision addresses and increases anti-discrimination protections in the workplace specifically for transgender and gay workers under Title VII. It affirms that in the matter of firing employees for sexual orientation or gender identity, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

In the three consolidated cases ruled on by the court, the dispute was not whether the employees were fired for their sexual orientation or gender identity—employers conceded that these were indeed the motives for termination. Rather, the employers argued that acting on this particular strain of discrimination was within their rights and that Title VII did not provide a basis to prove otherwise.

The development of the term “sex” is what came most into question. The Supreme Court recognized that, as written in 1964, sex was used to describe “biological distinctions between male and female.” Indeed, critics of Title VII’s expansion feel that it has been illegitimately updated, deeming it wrong from a textualist perspective to interpret the 1964 statute in terms of our time, rather than its original time.

The link from Title VII to LGBTQ+ rights based on this language is not entirely new. In the 1989 case Price Waterhouse v. Hopkins, the Supreme Court interpreted the statute’s language to include “sex-stereotyping,” a perceived failure to conform to the “socially constructed characteristics of males and females.” Later, Attorney General Eric Holder cited this precedent in a 2014 memorandum clarifying the Justice Department’s position on the matter, in which he agreed that Title VII’s language encompasses those of transgender status. A federal court ruled similarly in Hively v. Ivy Tech Community College in 2017.

In dissent, U.S. Associate Justices Samuel Alito and Clarence Thomas wrote that the ruling goes beyond judicial interpretation and acts as independent legislation. They argue that since the terms “sexual orientation” and “gender identity” do not appear in Title VII, they cannot be considered inherent to the statute—that since the concept of gender identity was relatively unknown at the time, the language of the Civil Rights Act of 1964 “still means what it has always meant.” The approach seeks to define sex as being biologically determined at birth and, therefore, unable to describe gender identity or sexual orientation.

Another notable concern for those opposed to the expansion of Title VII was the factor of religious bias regarding discrimination law. The Court remains adamant about the preservation of exercising Constitutional religious freedom, which Title VII allows as an exemption from nondiscrimination legislation.

On controversial issues (of which Bostock v. Clayton County can certainly be included), we can typically expect to see the nine justices split nearly equally, with one swing vote carrying the majority to a final ruling of 5-4. This case drew additional attention by its 6-3 ruling, a majority of some political consequence when considering the decision’s unexpected allies.

Chief Justice John Roberts is known for his previous conservative rulings in LGBTQ+ decisions. In the 2015 Supreme Court legalization of same-sex marriage for all 50 states, Roberts offered a strong dissent. He also opposed the Court’s 2013 decision to expand federal rights to same-sex marriages. In Bostock, however, he supported the expanded Title VII coverage, a surprise for those assuming another conservative opinion to come from Roberts.

It is not uncommon for politicians to frame the Supreme Court in the light of partisan predictability. During a 2016 campaign rally, President Donald Trump made a claim, “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges…you have no choice.” By the end of January 2017, he had nominated Neil Gorsuch to succeed Antonin Scalia on the Supreme Court.

Yet Justice Gorsuch has openly shirked the idea that he would conform to party politics. In his 2017 confirmation hearing, he insisted that judges are not “politicians in robes,” and his Title VII ruling rings as an explicit confirmation of that sentiment. A brief was filed by the administration urging the Supreme Court to rule in favor of federal legality of LGBTQ+ workplace discrimination; another Trump administration order passed just two days prior to the Bostock decision had abolished law passed under President Barack Obama to protect transgender patients from discrimination in healthcare. Gorsuch’s opinion stands in stark contrast to the public position of the White House on these matters.

Some states had previously passed laws of varying degree and effect in defining workplace LGBTQ+ discrimination, with 28 states lacking any protective law. The June 15 decision acts as unified anti-discrimination legislation across all 50 states, with a yet undetermined scope of influence. Gorsuch wrote that the effects of Title VII over the years have had “far-reaching consequences, some likely beyond what many in Congress or elsewhere suspected.” Though Title VII does not itself extend to public spaces, housing, or education issues, the decision may be used broadly across any civil rights laws that prohibit discrimination based on sex. The definition of sex itself will now include gender identity and sexual orientation in courts throughout the United States.