Above photo: Jaquelyn Martin/ AP.
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.”
The Supreme Court just issued a landmark decision penned by Neil Gorsuch, a conservative justice appointed by President Donald J. Trump, deciding that “An employer who fires an individual merely for being gay or transgender violates Title VII.”
“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 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,” the decision reads. “An employer who fires an individual merely for being gay or transgender violates Title VII.”
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, 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.”
“But the limits of the drafters’ imagination supply no reason to ignore the law’s demands,” Gorsuch continued. “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 by Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer, and Chief Justice John Roberts.
Last year, the Supreme Court heard arguments in three cases concerning LGBTQ rights and Title VII of the Civil Rights Act of 1964, which bans job discrimination “because of sex.” Two of the cases involved gay people (Altitude Express, Inc. v. Zarda and Bostock v. Clayton County, Georgia) and one was brought by a transgender person (R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens), arguing that Title VII already bans job discrimination against LGBTQ people.
Lawyers for the plaintiffs and for LGBTQ and civil rights groups argued that the provision in Title VII in the Civil Rights Act of 1964 prohibiting discrimination “because of sex” necessarily applies as well to discrimination on the basis of sexual orientation or gender identity.
Discrimination based on gender identity and sexual orientation necessarily involve discrimination because of sex, mainly because a worker is getting treated differently for things that would be acceptable for someone of different sex.
Moreover, the plaintiffs argued, the Supreme Court has long included discrimination based on sex stereotypes under the definition of “because of sex.” LGBTQ people defy sex stereotypes like “men and women marry people of the opposite sex” and “people assigned male or female at birth identify as men and women,” meaning anti-LGBTQ discrimination is discrimination because of sex stereotypes.
James Esseks, director of the ACLU’s LGBTQ & HIV Project, said, “This is a huge victory for LGBTQ equality. Over 50 years ago, Black and Brown trans women, drag queens, and butch lesbians fought back against police brutality and discrimination that too many LGBTQ people still face. The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights. 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.
“Our work is not done. There are still alarming gaps in federal civil rights laws that leave people — particularly Black and Brown LGBTQ people — open to discrimination in businesses open to the public and taxpayer-funded programs. Congress must affirm today’s decision and update our laws to ensure comprehensive and explicit protections for LGBTQ people and all people who face discrimination.”
Gerald Bostock had been employed as a social worker for the Clayton County juvenile court and Donald Zarda as a skydiving instructor for the New York-based Altitude Express without a record of the complaint until after they were outed through inadvertent circumstances.
Bostock was fired in 2013 after he was listed in a newspaper article as a player in the gay softball league. Zarda was fired in 2010 after he answered a female student’s concern about skydiving in tandem by reassuring her that he was “100 percent gay.”
Bostock and Zarda sued their former employers under Title VII in federal district courts. Zarda died in a base-jumping accident in 2014, but his mother is continuing to pursue his claim, which the federal appeals court in New York cleared for trial. Bostock’s suit was dismissed by the district court and that decision was affirmed by the federal appeals court in Atlanta.
Aimee Stephens had worked for the Detroit-area funeral home for six years before telling her boss in 2013 that she is a woman. She complained to the EEOC, which sued on her behalf in federal district court. The federal appeals court in Chicago cleared the case for trial.
The ALCU represented Aimee Stephens and Don Zarda, as well as Donna Stephens, Aimee’s wife, and Bill Moore and Melissa Zarda, Don’s former partner and sister, who moved these cases forward after they died.
The Trump administration argued in the cases that Title VII doesn’t address LGBTQ people at all, and that Congress in 1964 did not want the bill to include LGBTQ people. If an employer fires all LGBTQ people, no matter their sex, then the employer isn’t discriminating because of sex.
According to the Trump administration, it should be up to Congress to pass LGBTQ discrimination protections. Donald Trump opposes the Equality Act, which would ban discrimination against LGBTQ people.
The cases were the first to be argued before the Court since Justice Brett Kavanaugh’s appointment in 2018 to succeed Justice Anthony M. Kennedy, who wrote and provided critical votes in three closely divided landmark gay-rights decisions, including the 2015 marriage equality ruling, Obergefell v. Hodges.
“My wife Aimee was my soulmate,” Donna Stephens said in an emailed statement. “We were married for 20 years. For the last seven years of Aimee’s life, she rose as a leader who fought against discrimination against transgender people, starting when she was fired for coming out as a woman, despite her recent promotion at the time. 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.”
Stephen died last month without seeing the conclusion of her case.
“The story of our nation is one of a relentless march toward greater justice and greater equality for all people,” former Vice President and presumptive Democratic presidential candidate Joe Biden said. “Fifty years ago this month, the first Pride march took place in New York City as a protest — as a call for liberation. Today, by affirming that sexual orientation and gender identity discrimination are prohibited under Title VII of the Civil Rights Act, the Supreme Court has confirmed the simple but profoundly American idea that every human being should be treated with respect and dignity. That everyone should be able to live openly, proudly, as their true selves without fear.”