A victory for LGBTQ employees

In an opinion written by Justice Neil Gorsuch in Bostock v. Clayton County, the U.S. Supreme Court held that federal law prohibits employment discrimination against LGBTQ workers. The Court examined Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of [an employee’s] race, color, religion, sex, or national origin.” 

 Justice Gorsuch concluded the law covers discrimination based on sexual orientation or gender identity:

             “In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national orgin. Today we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or action it would have questioned in members of a different sex. Sex plays a necessary and undisguishable role in the decision, exactly what Title VII forbids.”

The decision was split 6-3. Chief Justice John Roberts joined the majority. Justices Alito, Thomas and Kavanaugh dissented.

Justice Gorsuch found discrimination occurs whenever an employer treats male employees differently than female employees. He pointed out two examples: In the first, both employees are attracted to men; however, one is a female, one  male. If the employer fires the male employee for no other reason than his attraction to men, the employer has engaged in sex discrimination. In a second example, the employer might fire a transgender person who was identified as male at birth but now identities as a female. If the transgender person is fired, it can constitute discrimination against one who changed gender identity in favor of one who was the same gender throughout. Justice Gorsuch stated, “Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

While the LGBTQ should celebrate this victory with two conservative justices siding with the majority, the fight is not over. The Court is considering a case that would provide religious exemptions to Title VII. In a concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), Justice Gorsuch suggested that religious groups may enjoy an exemption from laws forbidding discrimination on the basis of sexual orientation or gender identity.

Even so, we should celebrate this decision, not only because it provides greater protection to LGBTQ workers. We should also celebrate the fact that the Court resisted pressure from the Trump Administration. It also shows the Court was able to set aside the justices’ individual biases and do the right thing.