“Held: An employer who fires an individual merely for being gay or transgender violates Title VII.”
The words, written by conservative Supreme Court Justice Neil Gorsuch, sent shockwaves throughout the LGBTQ+ community in mid-June.
The line, followed by Gorsuch’s opinion and his conservative colleagues’ dissents, meant that after years of court battles, LGBTQ people throughout the nation could not be fired for being themselves.
In the following weeks, the court would partially save a program that protects young people brought to the U.S. as small children from deportation. It would deny arguments that were in favor of allowing asylum seekers to request a hearing before a judge if their claim is rejected. It was called on by the Trump administration to eviscerate the Affordable Care Act in the middle of a pandemic.
But, on June 15, advocates would find a nearly complete victory, with six of the nine justices ruling in favor of nationwide LGBTQ workplace protections.
Elayne Wylie, co-director of the Gender Justice League, was relieved.
“Not having to be scared,” Wylie said. “That is the most notable thing.”
The opinion hooks on Title VII of the 1964 Civil Rights Act, which makes it illegal “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
It is a far-reaching law that courts have said forbids “sex stereotyping” as a basis for discrimination in the workplace and makes sexual harassment a form of discrimination, as well. But the three cases that the opinion covers were different — they claimed that being fired for one’s sexual orientation or gender identity was also a form of sex discrimination.
The cases at question involved three people: Gerald Bostock, an award-winning child welfare advocate in Georgia; Donald Zarda, a skydiving instructor in New York; and Aimee Stephens, who worked at a funeral home in Michigan.
Bostock was fired from his role at the county after joining a gay recreational softball league. Zarda lost his job after assuring a female student that he was gay. Stephens’ job as a funeral director was terminated when she disclosed she would “live and work full-time as a woman” after working and presenting herself at the funeral home as a man.
“What this litigation is about is, ‘What does “sex” mean?’” said Joshua Treybig, president of the QLaw Association of Washington, the state’s LGBT bar association.
Many statutes include the word “sex” but do not define the term, leaving the door open to interpretation. In modern times, “sex” has been defined as a biological term, whereas “gender” refers to a social construct that one can choose to express in any number of ways.
It was evident that each of these people were only fired for their sexual orientation and gender identity, the justices decided, which are protected under Title VII, regardless of its drafters intent for the word “sex.”
“[T]he limits of the drafters’ imagination supply no reason to ignore the law’s demands,” the opinion reads. “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.”
Justices Brett Kavanaugh, Clarence Thomas and Samuel Alito disagreed.
In Kavanaugh’s dissent, he argued that Congress passed the 1964 Civil Rights Act, and only Congress can change it. He pointed to a handful of legislative efforts to expand protections around sexual orientation that ultimately failed. Judges are meant to interpret the law, not rewrite it, Kavanaugh wrote.
Alito and Thomas, in the leading dissent, disputed that the court’s majority was merely enforcing the statute, saying that was “preposterous” because it would have been “hard to find” someone who thought “sex” included “sexual orientation” — much less “gender identity,” which the justices assert was “essentially unknown at the time.”
The majority decision confers new protections for LGBTQ people in roughly half of the United States that did not have existing protections. Washington state already provides protections based on sexual identity.
One tragedy associated with the case is that two of the plaintiffs — Stephens and Zarda — died before they could hear the verdict in the cases that they spent years fighting in courts, Treybig said.
Their sacrifice led to a civil rights victory, Wylie said.
“The language they wrote has an impact across the LGBTQ spectrum,” she said.
Ashley Archibald is a Staff Reporter covering local government, policy and equity. Have a story idea? She can be can reached at ashleya (at) realchangenews (dot) org. Follow Ashley on Twitter @AshleyA_RC.
Read more in the July 1-7, 2020 issue.