UNITED STATES – OCTOBER 8: Protesters rally in front of the Supreme Court as it hears arguments on … [+]
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The word “historic” and “landmark” are too often overused, but they seem apropos in this instance, as are “shocking,” “surprising” and “unexpected.” The U.S. Supreme Court today ruled that gay, lesbian and transgender employees are afforded the same protection from discrimination in the workplace as every other American, as provided by Title VII of the Civil Rights Act of 1964.
The vote was 6 to 3. Another round of “shocking,” “surprising” and “unexpected” is in order here. Even the staid, ever-more conservative New York Times threw in the word, “stunning.”
Perhaps that’s because Associate Justice Neil M. Gorsuch, appointed by President Trump, wrote the majority opinion. As the Washington Post put it: “a major gay rights ruling written by one of the court’s most conservative justices.” He was joined by Chief Justice John G. Roberts Jr., Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Gorsuch 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.”
The American Civil Liberties Union, which represented the late Aimee Stephens, a transgender plaintiff fired by a Michigan funeral home because she told her boss she was transgender, hailed the ruling as “huge.”
“This is a huge victory for LGBTQ equality,” said James Esseks of the American Civil Liberties Union. “The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights.” Esseks added that “the court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law.”
The dissenting justices were Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh.
“If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation — not to mention gender identity, a concept that was essentially unknown at the time,” wrote Alito. He and Thomas said their colleagues were amending the law, not interpreting it.
Alito also scolded Gorsuch for presenting his opinion “as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice [Antonin] Scalia,” the court’s conservative champion, who died in 2016 after 30 years on the bench. Gorsuch replaced Scalia. “No one should be fooled,” Alito wrote.
“The court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should “update” old statutes so that they better reflect the current values of society.”
Associate Justice Kavanaugh, another Trump appointee, wrote a separate dissent.
“The court has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth,’” Kavanaugh wrote, quoting a previous case. Then he added: “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”
To his credit, Gorsuch explained why Alito, Thomas and Kavanaugh were wrong. It’s simply because the reason gay and transgender workers who are fired for being who they are, are fired because of their sex, he wrote.
“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,” he wrote.
That just happened to be exactly what lawyers for the gay and transgender employees had argued before the high court. Gorsuch was clearly listening, and as one of the court’s most conservative justices, his opinion is one for the history books.
While acknowledging no lawmaker in 1964 had gay, lesbian or trans workers in mind, the words of the statute they wrote protect them, too, he wrote. “Likely, they 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.”
It’s been noted on social media that the justices—and subsequently, the news media—made no mention of bisexuals in the ruling or their opinions. Team USA athlete Chris Mosier, a trans man who has recorded many historic firsts, offered this on Twitter:
How might this affect religious employers? That’s for future cases, Gorsuch wrote. And we can expect there will be.
But for today, Aimee Stephens rests in peace. She had her day in court. And she won for all of those who are part of the LGBT+ community.
The same goes for the late Donald Zarda, a skydiving instructor, and Gerald Bostock, who claimed that he was fired from his job as a social worker in Clayton County, Georgia, after he became more open about being gay, including joining a gay softball league.
Today, they won. Stunning, indeed.