Supreme Court: Sexual orientation and gender identity covered under federal discrimination law

Washington D.C., Jun 15, 2020 / 08:00 am

The Supreme Court ruled on Monday that employers cannot fire workers because of their sexual orientation or self-determined gender identity, while dissenting justices opined the Court was legislating from the bench.

Justice Neil Gorsuch wrote the majority opinion for the Court in a 6-3 decision, joined by Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh all dissented from the majority opinion.

The decision considered a trio of discrimination cases before the Court, two of which involved employees who said they were fired because of their sexual orientation in Bostock v. Clayton County and Altitude Express, Inc. v. Zarda.

A third case, Harris Funeral Homes, Inc. v. EEOC, involved a man who lost his job at a Michigan funeral home after he had gender-transition surgery and returned to work dressed as a woman; the funeral home had sex-specific dress code policies for employees.

The question at issue was whether or not protections against sex discrimination in Title VII of the Civil Rights Act also applied to discrimination on the basis of sexual orientation and gender identity.

On Monday, the Court's majority ruled that "An employer who fires an individual merely for being gay or transgender violates Title VII."

The U.S. Conference of Catholic Bishops in November had asked the Court not to extend Title VII protections to sexual orientation and gender identity, because to do so would "redefine a fundamental element of humanity."

"Words matter," the statement from leading U.S. bishops said. "'Sex' should not be redefined to include sexual inclinations or conduct, nor to promulgate the view that sexual identity is solely a social construct rather than a natural or biological fact."

On Monday morning, the religious freedom legal group Alliance Defending Freedom stated on Twitter that "[r]edefining 'sex' to mean 'gender identity' will create chaos and enormous unfairness for women and girls in athletics, women's shelters, and many other contexts."

"Civil rights laws that use the word 'sex' were put in place to protect equal opportunities for women," ADF stated, adding that for a court "to redefine a term with such a clear and important meaning undermines those very opportunities-the ones the law was designed to protect."

ADF is currently representing three female high school track athletes who sued the state of Connecticut's high school athletic conference for allowing biological males identifying as female to compete in female track.

The Court's majority noted Monday that Congress may not have anticipated Title VII protections being considered for sexual orientation and gender identity cases at the time of the law's enactment, "[b]ut the limits of the drafters' imagination supply no reason to ignore the law's demands."

"Only the written word is the law, and all persons are entitled to its benefit," Gorsuch wrote.

Justice Samuel Alito wrote one dissenting opinion, joined by Justice Thomas.

"There is only one word for what the Court has done today: legislation," Alito wrote. The law does not mention "sexual orientation" or "gender identity," he said, and Congress for decades has considered legislation to add that language to Title VII but has not yet done so.

"But the Court is not deterred by these constitutional niceties," he wrote. "Usurping the constitutional authority of the other branches, the Court has essentially taken H.R.5's provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall."

Justice Kavanaugh, writing his own dissent, stated that "[u]nder the Constitution's separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court."

Gorsuch, writing for the Court's majority, acknowledged religious freedom concerns for employers in the Court's decision. Religious organizations and employers do have certain protections from discrimination lawsuits under the First Amendment and the Religious Freedom Restoration Act (RFRA), he wrote.

However, the religious freedom question would be a matter of future consideration since "none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way," he wrote.