On June 15, 2020, in Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020), a decision written by Justice Gorsuch, the Supreme Court ruled in a 6-3 vote that even if Congress did not have discrimination on the basis of sexual orientation or transgender status in mind when it enacted Title VII of the Civil Rights Act of 1964, Title VII’s ban on discrimination protects gay, lesbian, and transgender employees.
The case was originally brought by three separate plaintiffs and was consolidated into one case when it reached the Supreme Court. In each of the cases, the employer did not dispute that they fired their employees for being homosexual or transgender. Rather, they contended that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. The first case involved a Clayton County, Georgia employee who was fired for conduct “unbecoming” of a county employee when he began participating in a gay recreational softball league. The second involved a skydiving instructor who was fired days after he mentioned to his employer that he was gay. The third case involved a transgender woman who presented as a man when she was hired but was fired after she informed her employer that she planned to “live and work full-time as a woman.” The circuit splits between the Eleventh, Second, and Sixth Circuit that resulted from the three cases set this case up for adjudication with the Supreme Court.
The question on certiorari before the court was “[w]hether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of… sex’ within the meaning of Title VII of the Civil Rights Act of 1964, 42U.S.C. § 2000e-2.” Justice Neil Gorsuch framed the question before the court as a straightforward one: “Today,” he wrote, “we must decide whether an employer can fire someone simply for being homosexual or transgender.” The answer to that question “is clear.” When an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Gorsuch wrote that “[Congress] might not have anticipated their work would lead to this particular result.” But, he added “they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.” However, he continued, the “limits of the drafters’ imagination supply no reason to ignore the law’s demands.” When the text of a law and “extratextual considerations” point in different directions, the “written word is the law, and all persons are entitled to its benefits.”
The majority opinion states that sexual orientation and gender identity are “inextricably bound up with sex,” and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules.” As an example, Justice Gorsuch offers that “an employer that announces it will not employ anyone who is homosexual intends to penalize male employees for being attracted to men and female employees for being attracted to women.” Gorsuch “agree[s] that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
“As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.” Justice Gorsuch then concludes in the opinion that “[i]n 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.”
Justice Alito, joined by Justice Thomas, wrote a dissent that can be summed up by its first sentence: “[t]here is only one word for what the Court has done today: legislation.” Justice Alito writes that last year, “the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both ‘sexual orientation’ and ‘gender identity,’ but the bill has stalled in the Senate.” His dissent is biting against the majority and states that the “brazen abuse of [the Supreme Court’s] authority to interpret statutes is hard to recall.” He calls the majority’s reasoning that the opinion is merely enforcing the terms of the statute “preposterous.” He argues that the question before the court is “not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.” He concludes that “[i]t indisputably did not.”
Justice Kavanaugh writes in a separate dissent that the question before the court was “whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation.” In his opinion, he opines that it is the responsibility of “Congress and the President in the legislative process, not to this Court.” He continued that “the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical” when judges make decisions that appear to the personal preferences rather than based on the law. He concludes by acknowledging “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”
The ruling in this case is based on statutory interpretation grounds. It makes immediately clear to employers that Title VII prohibits discrimination against job applicants or employees on the basis of sexual orientation or gender identity. Title VII applies to private sector employers with 15 or more employees, as well as public sector employers, e.g., local, state, and federal employers. Title VII does not include private sector employers with less than 15 employees, whereby local or state laws could fill in the gap.
The ruling also addresses the possibility of certain employers claiming an exception to Title VII’s reach if an employer claims that it violates their sincerely held religious belief. Justice Gorsuch notes that the court is “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.” Justice Gorsuch writes that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases.” Notably, there are currently cases pending certiorari to the Supreme Court that may answer this question in the future.
The ruling in Bostock v. Clayton County impacts Title IX of the Education Amendments Act of 1972 protections for transgender students since Title IX cases look to Title VII for guidance. Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Furthermore, Bostock has implications for transgender individual’s protection under the Affordable Care Act since the ACA looks to Title IX for guidance. It follows that the Supreme Court ruling under Title VII would affect Title IX cases and also cases involving the ACA since all are incorporated by reference. The implications from the Bostock ruling have yet to be seen, but these are a few areas to monitor closely.