Stunning Victory for Transgender and Gay Rights as Supreme Court Makes Protections Explicit

The 6-3 decision included conservative Justice Neil Gorsuch, who replaced Anthony Kennedy–previously, the court’s champion of LGBTQ rights–and wrote the decision, and Chief Justice John Roberts, now considered the court’s most moderate of the conservative block. They joined Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor.

The decision will have far-reaching consequences regarding LGBTQ rights beyond employment, as it now explicitly lays out a prohibition against discrimination that cannot apply in employment situations without also applying in housing, education, the military and elsewhere. In Justice Samuel Alito’s words, albeit written in dissent, “the Court’s decision may exert a gravitational pull in constitutional cases,” and it “may have effects that extend well beyond the domain of federal anti-discrimination statutes.” (Alito wrote the words with a dismay the majority does not share.)

The decision also puts in question recent Trump administration reversals or eliminations of Obama-era protections of transgender individuals in the military and in schools. Just last month, the Flagler County School Board refused to include the words “gender identity” in a non-discrimination policy. It was the culmination of months of campaigning by the district’s LGBTQ community and its supporters for just such wording. The wording was opposed by some religious conservatives, and ultimately by a board that felt that its existing policy was broadly protective anyway.

“I’m still in shock from today’s SCOTUS decision,” Randall Bertrand wrote in an email in answer to a question about today’s decision. Bertrand is the father of a transgender boy whose issues at Matanzas High School and transfer to Flagler Palm Coast High School last school year galvanized the local LGBTQ movement. That movement held a demonstration just last Friday in support of LGBTQ rights, crossing the Flagler Beach Bridge. Bertrand was among the speakers.

“Many Federal District Courts and Circuit Courts of Appeal have used Title VII of the Civil Rights Act of 1964 to protect LGBTQ+ kids,” Bertrand went on, “but Flagler County did not fall within their jurisdiction. Today, SCOTUS’s ruling changes all that. I see this ruling as a binding decision that will protect LGBTQ+ citizens from discrimination in all forms including protections for our LGBTQ+ kids. I’m hopeful this decision will lead the Flagler County School Board to rethink its position on adding gender identity to the existing district non-discrimination policy. Just days after the 4th anniversary of the Pulse Nightclub shooting this is a tremendous victory for LGBTQ+ rights in all of America. I immediately called my wife and Elliott when I found out. Perhaps what happened to my son will legally be prohibited in the future. Truly a great day, but much more work to be done.”

Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex and national origin. The cases before the Supreme Court involved three individuals. Donald Zarda, a skydiving instructor, and Gerald Bostock, a child-welfare-services coordinator for Clayton County, Georgia, filed suit claiming they’d been fired for being gay. The Equal Employment Opportunity Commission filed suit on behalf of Aimee Stephens, a transgender woman who was fired from a funeral home after coming out. Both Stephens and Zarda have since died, but their cases were kept active.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Gorsuch wrote in a decision consolidating three cases argued before the court last October. “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or action 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.”

Gorsuch acknowledged that when Congress passed the law, it did not have transgender and gays in mind. “Likely,” he wrote, legislators “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. 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.”

The decision and the breakdown between justices were a surprise: Roberts was a staunch opponent of the decision five years ago that Kennedy wrote, legalizing same-sex marriage. “Just who do you think we are?” Roberts asked at the time, calling the decision “an act of will, not legal judgment.” His vote today points to a significant shift, though he remains just as staunch a supporter of carving out exemptions for businesses and religious organizations with regards to certain LGBTQ rights: Roberts opposed forcing businesses to serve LGBTQ customers in some circumstances, for instance.

Gorsuch had not yet shown his hand on LGBTQ questions.

Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented. Alito relied on the late Justice Antonin Scalia’s textualist approach in most cases: what the words of a law say is what the words mean, and the definition of a word must reflect what people reasonably believed that word to mean at the time the law passed. The word in question in these cases is “sex.”

“In 1964, the concept of prohibiting discrimination ‘because of sex’ was no novelty. It was a familiar and well understood concept, and what it meant was equal treatment for men and women,” Alito wrote. He went on to argue that in that context, the wording “was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day. For most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.” The dissent goes on to detail the attitudes and prejudices of 1964, an implicit defense of applying those prejudices and attitudes in the statutory interpretation of the word “sex” today.

Kavanaugh in his dissent echoed many of Alito’s argument but included a note of congratulations to the winners in the case: “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” he wrote. “They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”

Gorsuch’s opinion for the court acknowledges the dissenters but dismisses their argument. “Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act,” Gorsuch concluded. “Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected. But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”