Aligning itself with popular opinion and with the laws on the books in at least 21 US states, the US Supreme Court has affirmed that sexual orientation and gender identity are not fireable offenses. Rather, as the ruling makes clear, LGBTQ employees are covered under the 1964 Civil Rights Act protections outlawing workplace discrimination on the basis of sex.
It’s being hailed by some in the LGBTQ community as even more momentous than the 2015 decision legalizing gay marriage across the United States. And it’s being painted by many allies as a matter of basic human rights in the workplace.
“As our nation comes to grips with the public health, economic and racial justice crises we continue to face, let us rejoice, for a moment, in this important victory for every gay and transgender person who can now get up and go to work every day without the cloak of fear that their employer can fire them simply for being themselves,” said Randi Weingarten, president of the American Federation of Teachers union, which had submitted an amicus brief in support of the ruling eventually reached by the court. “Today, we are one step closer to more just workplaces in America.”
You will not find any similarly emotional proclamations in the court’s majority opinion (pdf) on the case, Bostock v. Clayton County. Writing for the majority, justice Neil Gorsuch stuck to a studious parsing of legislative phrasing, judicial precedent, and logic exercises meant to show how discrimination on the basis of sexual orientation or gender identity necessarily involves discrimination on the basis of sex.
There was nothing in the majority opinion about the basic dignity of being allowed to earn a living, or about the long history of discrimination and perseverance of LGBTQ Americans. For the latter, ironically, you’d have to look to justice Brett Kavanaugh’s dissent, in which he suggested that only an act of Congress could specifically protect LGBTQ workers under Title VII of the Civil Rights Act, and concluded:
“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. 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. I therefore must respectfully dissent from the Court’s judgment.”
No matter. The 6-3 ruling, stemming from lower-court cases involving the firings of two gay men and a transgender woman in Georgia, New York, and Michigan, enshrines nationwide the civil rights workplace protections of LGBTQ employees.
As Gorsuch wrote, the employers involved in the lower-court cases “do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is.”
Lawyers for the employers argued that “sex” is separate from sexual orientation, and that it certainly would have been separate in the minds of the legislators who crafted the Title VII protections more than 50 years ago. (This alleged distinction also is at the heart of the recent rollbacks of Obama-era protections for LGBTQ people seeking healthcare and health insurance.) But Gorsuch, who was nominated to the bench by US president Donald Trump, dismantled the idea that discrimination on the basis of sex and on the basis of sexual orientation are distinct:
“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”
Whether you prefer to argue the principle with logic games or on the basis of human rights, the fact is that LGBTQ Americans, in workplaces with 15 or more employees, are now federally protected from discrimination by employers. (Smaller employers are beholden to state and local anti-discrimination laws.)
Activists say their celebrations over today’s ruling are tempered by the Trump administration’s recent rollback of provisions protecting the rights of transgender people to health and health insurance. On June 12, the administration finalized a rule that could, as NPR notes, allow a doctor to refuse care for a trans patient, or allow an insurance company to deny ovarian-cancer treatment coverage for a transgender man.
Like the employers in the Title VII case, Trump officials argued that the Affordable Care Act’s rules against discrimination on the basis of sex do not cover sexual orientation or gender identity. And like the Title VII case before it, it’s going to court.
So it’s another long spell of wait-and-see, on both the access-to-healthcare debate and the new issues likely to be raised in the wake of the court’s ruling on workplace discrimination against LGBTQ employees.
Two years ago, the Supreme Court decided 7-2 in favor of a baker who turned away a gay couple seeking a cake for their wedding. How will it rule when business owners or company executives argue that their religious liberties are compromised if their beliefs are at odds with the sexual orientation or gender identities of employees they wish to fire?