By: Imogen Rose-Smith
On Monday the U.S. Supreme Court sent down a decision outlawing anti-LBGTQ employee discrimination. It is a landmark decision for workers’ rights and the gay community in the U.S., and around the world. And it means an employee can no longer be fired or discriminated against based on their sexual orientation or gender presentation.
Until now, employees in some states could be fired soley for being gay. Transsexuals had even less legal protection. As recently as 2019 someone coming out as transgendered in 26 states could lose their job.
Bostock v. Clayton County has changed that. The Supreme Court found that transsexual and gay employees are protected by Title VII of the 1964 Civil Rights Act, which prohibits work place discrimination on the bases of race, color, religion, sex, and nation of origin. The six person majority found that:
An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee.
Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates this law.
Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but for cause when an employer discriminates against homosexual or transgender employees, the Court held that an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.
In other words, sex, gender and sexuality are inescapably combined. To discriminate against someone because of their sexuality or gender identification is by definition to discriminate them because of their sex. If a company discriminates against a man for marring another man, they are doing so because he is not a woman ie they are discriminating against him on the grounds of his sex. By the same token, if a firm discriminates against an employee who comes to work as a transgender man they are doing so on the grounds of that persons sex. If that person was a cis (biologically male) man, they would not be discriminated against for coming to work as a man. The persons sex is what causes them (the necessary “but for cause”) to be discriminated against.
The majority ruling was written by non-other than Judge Neil Gorsuch, Trump’s first of two SCOTUS justices, a conservative judge who was expected to hold up conservative values. (Chief Justice John Roberts also sided with the four liberal justices on the court to deliver the majority opinion.) As Slate put it:
The Supreme Court’s decision on Monday outlawing anti-LGBTQ employment discrimination is a triumph for both the country and the court. It is a victory for the country because, in one fell swoop, the court granted vital protections to LGBTQ people in every state, making the United States a fairer, freer place. It is a victory for the court because the decision is an encouraging sign that the justices can still practice neutral and responsible jurisprudence without partisan influence. The six-justice majority was able to set aside its own potential biases and deliver an unequivocal endorsement of simple, rather obvious legal theory. By following the most straightforward path, the court reached a historic result that brings millions of LGBTQ people closer to full equality under the law.
Gorsuch and Roberts coming together with the four liberal justices on an issue that has been a touchstone for right wing conservatives shows that it is possible for the Supreme Court to rise above partisanship.