The Supreme Court on Monday ruled that Title VII of the Civil Rights Act protects gay and transgender people from employment discrimination.
The court decided in a 6-3 vote, with Chief Justice John Roberts and Justice Neil Gorsuch joining liberal justices. The case, Bostock v. Clayton County, is a consolidation of several cases involving gay and transgender people arguing that Title VII’s prohibition on discrimination on the basis of sex should be expanded.
“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law,” Gorsuch wrote in the court’s majority opinion.
The case was heard in October and was the court’s first on the issue since the retirement of Justice Anthony Kennedy, who delivered the decisive swing vote in 2015’s landmark Obergefell v. Hodges case that established a right to gay marriage. The arguments pitted two definitions of “sex” against each other: those in favor of transgender protections, arguing that it is determined by gender identity and those opposed advocating for the traditional biological definition.
Gorsuch, who usually rules with the court’s conservative wing, indicated then that he saw a strong case for employment protections for transgender people, based on precedent in past interpretations of “sex” as gender identity. Although he warned of “massive social upheaval” should the court rule in favor of transgender protections, Gorsuch said that he was “really close, really close” in thinking that Title VII could reasonably be interpreted to include them.
Justice Samuel Alito voiced strong opposition at the time, saying that such a decision would completely “change the meaning” that Congress had intended when it originally passed the Civil Rights Act. Alito, in a dissent joined by Justice Clarence Thomas, continued that line of argument.
“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous,” he wrote. “Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’ And in any event, our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.'”
Alito appended his dissent with several pages of contemporaneous definitions of sex to prove his point.
“Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII,” he wrote. “But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
Justice Brett Kavanaugh, in a separate dissent, wrote that he did not believe “the responsibility to amend Title VII” should fall to the court since it was Congress that originally passed the act. Kavanaugh expressed those concerns during the case’s arguments, as did Roberts.
Speaker of the House Nancy Pelosi, along with many other House Democrats, hailed the decisions as “momentous.” Michigan Gov. Gretchen Whitmer, in whose state one of the plaintiffs lived, also praised the decision.
But among social conservatives, responses were condemnatory. Southern Baptist leader Russell Moore warned that the decision would have “seismic implications” for religious liberty. John Bursch, an attorney at Alliance Defending Freedom, the legal nonprofit organization that had argued against protections, decried the court’s decision in a statement.
“Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts,” he said. “Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities — the ones the law was designed to protect.”
The decision will likely have wide-reaching implications for employers, especially those attached to a faith or religious tradition that disagrees with gay marriage or issues related to transgender people. In the past several years, some states and Democratic members of Congress have been pushing for the passage of the Equality Act, which would ban employment discrimination on the basis of gender identity. Several states have already passed their versions of the act, most recently Virginia.
The Trump administration has weighed in on the issue as well and defined sex as a biological trait. On Friday, the Department of Health and Human Services and the Department of Housing and Urban Development issued rules that rolled back Obama-era initiatives to define sex along the lines of gender identity.
The court in the fall will hear arguments in Fulton v. City of Philadelphia, another case concerning gay and transgender issues. The court will decide if faith-based charities are discriminating against parents in a nontraditional marriage by refusing to serve them.
