Even in the middle of a resurging pandemic, it’s important to remember that good things still exist. Today, the Supreme Court gave us that reminder in the form of a 6-3 decision that LGBTQ people are protected against employment discrimination.
To get colloquial for a second here — this is huge. When the Supreme Court ruled in 2015 that states could not ban same-sex marriage, it was a momentous step for equality. However, that ruling only applied to those gay and lesbian people who wanted to marry. For countless reasons, many LGBTQ folks will not want to marry over the course of their lives, so the 2015 decision, while symbolically important to all LGBTQ people, was only practically relevant to a subset.
Not today’s decision. Why? Because virtually every LGBTQ person will work over the course of their lifetime. And after today, every one of those people will work knowing that they are protected under federal law against being treated differently because of their sexual orientation or gender identity. Today’s decision is an unequivocal GOOD THING because it is a sea change for equality.
The ruling today was a combined ruling in three cases — two about discrimination against gay people and one about discrimination against a transgender person. Justice Neil Gorsuch, President Trump’s first appointee to the Supreme Court, wrote the opinion that covered all three cases. Chief Justice John Roberts and the Court’s four liberals joined Justice Gorsuch in the opinion.
The central dispute in the cases is over whether the term “sex” in Title VII (the federal anti-discrimination law that applies to workforces of 15 people or more) includes sexual orientation and gender identity. The law doesn’t mention “sexual orientation” or “gender identity” at all, but Justice Gorsuch said that doesn’t matter. He concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
He then reasoned very simply to explain his conclusion. I don’t normally like big long quotes like this, but his explanation is very straightforward and instructive, so it’s worth reading:
“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
LGBTQ lawyers have been making this argument for decades, but lower courts have danced around it repeatedly, and the Supreme Court has never entertained it. All of the past LGBTQ rights rulings have relied on other principles, such as liberty, dignity, or that laws can’t be based on hatred. This ruling, though, takes a well-established principle in American law — that there can be no sex discrimination in most walks of life — and says what is entirely logical: this principle includes sexual orientation and gender identity discrimination because sex is an integral part of both.
Which is why today’s decision could have reverberations way beyond employment discrimination law. Other areas of federal law also prohibit discrimination based on sex — the Fair Housing Act prohibits it in housing; the Equal Pay Act prohibits it in your paycheck; Title IX prohibits it in education; the Equal Protection Clause of the Constitution prohibits it in government actions. Taking today’s ruling where it inevitably will lead means that each of these areas of law (and every other that applies to sex discrimination) should eventually prohibit discrimination against LGBTQ people as well. We’re not there yet, as future cases will have to decide these matters. But, based on today’s rulings, LGBTQ people should get more and more protections against discrimination in the near future.
For instance, just last week the Trump administration changed federal regulations that prohibited discrimination in health care based on LGBT status. Those were based on an interpretation of what discrimination based on “sex” was. With today’s ruling, the Trump change should eventually fall by the wayside, as the prohibition against sex discrimination should now apply to LGBT people for the same reasons as in today’s opinion.
Dissenting from today’s opinion were the Court’s two long-standing grumpy conservatives —Justices Samuel Alito and Clarence Thomas — as well as the Court’s newest member, Justice Bret Kavanaugh. Justice Alito wrote a very long dissent for himself and Justice Thomas claiming that the Justices in the majority opinion were legislating from the bench and that any change should come from Congress, not the court. Justice Kavanaugh wrote separately making the same point. But he also ended his opinion against LGBTQ on an oddly congratulatory note, applauding LGBTQ folks for their “extraordinary vision, tenacity, and grit” in using the law to improve their lives.
Two LGBTQ people who sadly will not be able to read Justice Kavanaugh’s praise or join in the celebration today are Aimee Stephens and Donald Zarda. They are two of the three named plaintiffs in the cases today. Zarda died in 2014, and Stephens died earlier this year. Both of their families continued their cases and will be celebrating in their honor today. But it’s a sad coda to today’s celebration that only Gerald Bostock (the other plaintiff in these cases) will be able to celebrate the monumental victory that these three people have brought to America.
And on that note, Justice Kavanaugh was correct. Today’s decision is a major victory for LGBTQ rights, perhaps the greatest in American history because of its broad sweep and undeniable implications. Every LGBTQ person in the country who works for an employer with 15 or more workers, even those who live in the most conservative parts of the country, is now protected against discrimination on the job. This basic human right should have been extended decades ago, but the long delay shouldn’t take away from the fact that now that it has happened, it is a victory for LGBTQ people and for all Americans who care about justice and fairness.
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