In a decision on June 15th, the U.S. Supreme Court held 6-3 that the protections for “sex discrimination” include discrimination based on sexual orientation and gender identity. In three combined cases, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects against sexual orientation and gender identity because it is discrimination because of sex. Justice Gorsuch wrote the opinion in which Justices Ginsburg, Breyer, Sotomayor, and Kagan, and Chief Justice Roberts joined. Justices Alito, Kavanaugh, and Thomas dissented.

Prior to the decision, the Eleventh Circuit held that sexual orientation was not protected, while the Sixth and Second Circuit held that sexual orientation and gender identity were protected.

The opinion was based on a textualist approach to constitutional analysis. The Court wrote: “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.” Under this analysis, if an employer would have reached a different decision if the employee were of the other sex, sex discrimination occurred. Discrimination based on sexual orientation and gender identity involves two factors: sex and something else (either the sex to which the person is attracted or the sex to which the person identifies). Even with two causes, it still meets the definition of discrimination because of sex because the employment action would not have taken place but for the person’s biological sex.

The Court rejected the argument that “because of . . . sex” would not have been intended or understood to include homosexuality and transgender in 1964 when the statute was written. The Court held that something can mean one thing at one time and another thing at a later time, but the written word is the law, absent an ambiguity that requires looking at legislative intent.

The Court also rejected the argument that it is not discrimination “because of sex” when an employer treats males and females who are homosexual or transgender equally badly. Ultimately, the reason for the employment action comes back to the employee’s biological sex, at least in part.

Justices Kavanaugh, Alito, and Thomas accused the Court of legislating from the bench, which should be reserved for Congress. All three dissenting justices recognized that the result was good policy, while disagreeing with the Court’s role in achieving it.

The combined cases are: Bostock v. Clayton County, Georgia, No. 17-1618, Altitude Express, Inc., et al. v. Zarda, et al., No. 17–1623, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., No. 18–107