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| Monday, Jun 15, 2020
The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)
The U.S. Supreme Court. | Photo: Courthouse News / Jack Rodgers.


WASHINGTON — In a landmark 6-3 decision, the United States Supreme Court ruled Monday that federal anti-discrimination protections also apply to LGBTQ employees.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Neil Gorsuch wrote for the six-justice majority. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

At issue in the dispute is Title VII of the Civil Rights Act of 1964, which, among other things, bars discrimination “because of sex.” The Supreme Court has applied that prohibition in several other contexts, but Monday marks the first time it has weighed in on whether the protections extend to gay and transgender people.

In a 33-page opinion, Gorsuch, an appointee of President Donald Trump, wrote while the people who drafted Title VII likely would not have thought the law would cover gay or transgender people, the words they put to paper make clear that it does.

“But the limits of the drafters’ imagination supply no reason to ignore the law’s demands,” Gorsuch wrote. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

Gorsuch was joined in the majority by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Justice Samuel Alito penned a dissent in the case, joined by Justice Clarence Thomas. Gorsuch’s fellow Trump appointee, Justice Brett Kavanaugh, authored a separate dissent as well.

“Nobody should ever have to fear losing their job simply because of who they are or whom they love,” California Governor Gavin Newsom said in a statement Monday. “Today’s Supreme Court decision rights this injustice and brings the country in line with what has long been California law, ensuring that LGBTQ persons across our nation enjoy core civil rights legal protection at work. While the fight for equality continues, this ruling is a significant victory for the LGBTQ community, civil rights, and against discrimination.”

LGBTQ rights advocates praised the majority’s decision on Monday, hailing it as a significant victory for gay and transgender equality.

Virginia Delegate Danica Roem, the first transgender person elected to the state’s House of Delegates, said the decision accounts for fundamental differences in how LGBTQ people are treated in employment.

“If you look at this just on the words, what’s before you, a straight person is held to a different standard than the LGBTQ person,” Roem said in a phone interview. “That’s the point. That cannot stay. It is not okay to hold a straight person to a different standard for employment than an LGBTQ person.”

James Esseks, the director of the LGBTQ & HIV Project at the ACLU, which represented two of the employees in the cases, said Monday’s decision is the culmination of decades of advocacy work.

“The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law,” Esseks said in a statement.

The ruling comes in a trio of cases the court considered across two hours of oral argument in October.

One case concerns Gerald Lynn Bostock, who headed the Court Appointed Special Advocates program in Clayton County, Ga. Though he generally received positive performance reviews, the county fired Bostock in June 2013, shortly after he started promoting “Hotlanta,” a gay softball league in which he played.

The court heard Bostock’s claims alongside those of Donald Zarda, a gay skydiving instructor in New York. Zarda often did tandem jumps with customers, requiring him to be strapped tightly to a new jumper.

The company fired Zarda after a female customer complained about a joke he cracked, leading him to bring a suit claiming the company fired him because he was gay. Zarda died in a BASE-jumping accident while his case was pending.

The court also ruled Monday in the case of Aimee Stephens, a former employee at Harris Funeral Homes in Michigan. Stephens was hired before she came out as transgender, but in 2013, after undertaking treatment with a therapist, told the owner of the funeral home she wanted to live openly as a woman, with plans to undergo sex-reassignment surgery.

This meant she would don the skirt suit all female employees of the funeral home are required to wear. Thomas Rost, the funeral home’s owner, expressed concern that this would be distracting to the home’s grieving customers, and fired Stephens. Stephens died last month.

Donna Stephens, Aimee’s wife, said the decision vindicates the work to which her “soulmate” dedicated the last years of her life.

“I am grateful for this victory to honor the legacy of Aimee, and to ensure people are treated fairly regardless of their sexual orientation or gender identity,” Donna Stephens said in a statement.

While advocates have praised the decision, those who argued against extending employment protections to LGBTQ people through the cases said the court overstepped its authority and misinterpreted federal law.

John Bursch, the vice president of appellate advocacy at the Alliance Defending Freedom and attorney for Harris Funeral Homes, warned of sweeping consequences that will come out of the decision.

“Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women,” Bursch said in a statement. “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.”

Building on an interpretation of the law he probed during oral arguments, Gorsuch wrote an employer’s decision to fire someone due to their sexual orientation or gender identity necessarily means discriminating against that person due to their sex.

As an example, Gorsuch pointed to a hypothetical company with two employees – one male and one female — who are both attracted to men. If the company fires the male employee, but not the female employee, it is doing so on the basis of his sex.

It does not matter whether the employer treats male and female employees who are gay or transgender the same, Gorsuch wrote, the violation still boils down to discrimination on the basis of sex.

Turning to the court’s precedent, Gorsuch wrote the defenses advanced by the employers amount to repackaging “errors we’ve already seen and this court’s precedents have already rejected.” He also faulted the employers for warning the court of negative consequences of the ruling and for urging the justices to look beyond Title VII’s text.

“You can call the statute’s but-for causation test what you will — expansive, legalistic, the dissents even dismiss it as wooden or literal,” Gorsuch wrote. “But it is the law.”

He acknowledged court fights still remain over issues like the use of bathrooms and locker rooms divided according to sex or how Title VII interacts with religious objections, but that those issues are separate from the cases at hand.

George Rutherglen, a law professor at the University of Virginia, called Gorsuch’s opinion “conservative reasoning that reaches a liberal conclusion.” He said the opinion cleanly lays out a textualist argument for why the law might protect people in ways that would have surprised the Congress that passed it.

“Which is going to triumph, the expectations of the legislators as near as we can determine them, or the logic of the text of the statute?” Rutherglen said in an interview. “He opts for the logic of the text.”

In a scathing dissent, Alito dismissed Gorsuch’s majority opinion as “usurping the constitutional authority of the other branches.”

Though Gorsuch cites the late Justice Antonin Scalia in his opinion, Alito accused him of betraying the philosophy of the conservative legal icon to whom the Trump appointee is often compared.

“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.”

Alito noted updates to Title VII that would extend its protections to gay and transgender employees have long languished in Congress and said the court has improperly stepped into a role reserved for lawmakers.

The George W. Bush appointee said Gorsuch showed “breathtaking” arrogance in asserting that firing someone for being gay or transgender inherently involves discriminating against them on the basis of their sex.

As a hypothetical illustrating this point, Alito argued a company could enforce a policy of not hiring gay or transgender applicants without even knowing the sex of the prospective employee.

Presenting a parade of dictionary definitions and pointing to the history of anti-LGBTQ laws and social norms in states across the country, Alito argued at the time it enacted Title VII, Congress could not have intended to prohibit employment discrimination against gay and transgender people.

“Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were understood to mean at that time,” Alito wrote in a 54-page opinion.

Writing a separate opinion that makes similar arguments to Alito’s, Kavanaugh argued the majority adhered to a “literalist approach” to the statute without considering the ordinary meaning of its words.

Like Alito, Kavanaugh expressed concern that the opinion goes beyond the court’s proper role.

“Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate — judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law,” Kavanaugh wrote. “Under the Constitution and the laws of the United States, this court is the wrong body to change American law in that way.”

— By Tim Ryan and Brad Kutner, CNS

Read the complete Supreme Court decision below.

[Open .pdf in new window]

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