In a landmark 6-3 ruling, the Supreme Court decided Monday that Title VII, which protects workers from employment discrimination on the basis of gender, can be interpreted to include discrimination based on sexual orientation, extending the protections of federal employment law to LGBT individuals.
The ruling was unexpected, given the largely conservative makeup of the Supreme Court, and will likely give rise to further cases testing the limits of Title VII protections for LGBT workers, the Associated Press reports.
Justice Neil Gorsuch, a Trump appointee, wrote for the majority, which included the four “liberal” Justices — Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg — and Supreme Court Justice John Roberts. Justices Samuel Alito and Clarence Thomas dissented, as did the court’s most recent addition, Justice Brett Kavanaugh, who wrote his own dissenting opinion separate from the other two.
“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 in his opinion. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Alito and Thomas argued that, while the Court may believe it is achieving a judicious result, that same result could have — and should have — come through legislation and a specific, Congressional change to Title VII, rather than through the courts, and that the word “sex” cannot be read to include “sexual orientation” or “gender identity.”
“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous,” Alito wrote. “Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’”
“During the Obama years, the federal Equal Employment Opportunity Commission had changed its longstanding interpretation of civil rights law to include discrimination against LGBT people,” the AP adds. “The law prohibits discrimination because of sex but has no specific protection for sexual orientation or gender identity.”
The decision covers only those employers who claim to have been fired for their sexual orientation in jobs with no other conditions for employment. The plaintiffs whose cases were joined under the Bostock v. Clayton County decision include Donald Zarda, a former skydiving instructor who claimed to have been fired after his employers discovered he was gay; Gerald Bostock, a civil employee of Clayton County, Georgia; and Aimee Stephens, a transgender individual who was fired from a job at a Detroit-area funeral home after coming to work wearing women’s clothing.
The court did not specifically address whether religious organizations, many of whom prohibit openly gay individuals from serving as employees, will receive a carve-out exception to the ruling, or whether transgender individuals who have not had gender-reassignment surgery can be considered members of the opposite sex — an issue at the forefront of women’s athletics.
There are cases pending in lower courts on both of those issues, and both could come before the Supreme Court as early as next term.
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