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 decision is fraught with implications for Trump’s reelection bid and the conservative legal establishment. The president was elected in part on the strength of conservative voters weary of judicial selection under past Republican presidents. Whether jaded religious conservatives will tolerate another defection in a landmark case is an open question.
The decision may also precipitate real fissures within the conservative legal movement and its flagship groups like the Federalist Society. Some leading legal conservatives denounced the Gorsuch opinion almost immediately.
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.
The Trump administration supported the employers before the high court.
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.
Karlan’s argument proved persuasive enough for Gorsuch, a passionate apologist for textualism, who said the question was a relatively straightforward one.
"At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings," Gorsuch wrote for the majority. "For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms."
That Congress did not anticipate the full reach of Title VII’s application in 1964 makes no difference, Gorsuch went on to explain. In the past, the Court had held that the law also forbids "reasonably comparable evils" like sexual harassment, and it has never tolerated sex-based discrimination even when other factors are at work.
The decision also warned that cabining the law based on unforeseen applications will usually work against marginalized groups.
"To refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms," Gorsuch wrote.
Justice Samuel Alito invoked Gorsuch’s predecessor, the late Justice Antonin Scalia, in a furious dissent that accused Gorsuch of poaching the textualist label in bad faith.
"The Court’s opinion is like a pirate ship," Alito wrote. "It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society."
He also predicted that the decision will have far-reaching implications, saying the majority gave no reason to doubt that its logic would apply to issues like transgender bathroom access.
"As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety," Alito wrote. "No one should think that the Court’s decision represents an unalloyed victory for individual liberty."
In a solo dissent, Justice Brett Kavanaugh said judges ought to favor the "ordinary" meaning of a term rather than a "literal" one. For example, he said a rule barring vehicles in parks, taken literally, would prohibit baby strollers, even though the ordinary meaning of vehicle doesn’t include strollers. Likewise, he said, the "ordinary" meaning of "because of sex" refers to sex only, not orientation and gender identity.
"Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans," Kavanaugh wrote.
Monday’s cases are No. 17-1618 Bostock v. Clayton County and No. 18-107 R.G. & G.R. Harris Funeral Homes v. EEOC.
Bostock v. Clayton County S... by Washington Free Beacon on Scribd
Update 1:00 p.m.: This post has been updated with further information.
Update 2:30 p.m.: This post was updated with further information.