WASHINGTON, D.C. — The Supreme Court’s decision on June 16 stating that the Civil Rights Act of 1964 protects against discrimination on the basis of sexual orientation and gender identity signaled an important but unexpected victory for the LGBTQ community.
Associate Justice Neil Gorsuch, a Trump appointee, issued the majority opinion that states in forbidding discrimination based on “sex,” Title VII of the Civil Rights Act also bars discrimination based on sexual orientation and gender identity.
The Supreme Court’s latest decision covers three cases.
Gerald Bostick was fired after about 10 years of service to the Clayton County, Ga. government as a child welfare advocate after some community members raised concerns about his participation in a gay softball league. The cause was reportedly conduct “unbecoming” a county employee.
In the second case, Donald Zarda was reportedly fired after several seasons working as a skydiving instructor for Altitude Express in New York. His termination came just days after mentioning that he was gay, the Supreme Court opinion states.
Aimee Stephens presented herself as male to her employers at R.G. and G.R. Harris Funeral Home in Garden City, Mich. As reported in the opinion, after years of treatment for despair and loneliness, she was diagnosed with gender dysphoria. In her sixth year with the funeral home, she wrote to her employers that she would be returning from a vacation with plans “to live and work full-time as a woman.” She was reportedly fired before starting her vacation.
“Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender — and allegedly for no reason other than the employee’s homosexuality or transgender status,” Gorsuch wrote in the majority opinion.
Gorsuch wrote that the employers in the cases do not dispute that the three individuals were fired because of their sexual orientation or transgender status. He said the employers argue that “even intentional discrimination” on such bases are not covered under Title VII of the Civil Rights Act.
“Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” 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.”
Gorsuch wrote that while the members of Congress who approved the Civil Rights Act and the president who signed it into law may not have anticipated the Supreme Court majority’s opinion today is no reason to ignore “the laws’ demands.”
“Only the written word is the law, and all persons are entitled to its benefit,” Gorsuch wrote.
He offers examples and scenarios of how Title VII does in fact apply to such cases. The basis of Gorsuch’s argument, couched in the language of the Title VII, is the example of an employer who has two staff members 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,” Gorsuch wrote.
In his dissent, Alito offers a rebuttal to that particular scenario.
“The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. And until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement,” Alito wrote.
In arguing that Title VII “allows employers to decide whether two employees are ‘materially identical,’” Alito offers his own parallel hypothetical.
“If an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians or transgender individuals,” Alito wrote.
Alito chafes at Gorsuch’s many examples and hypothetical scenarios included in the majority opinion. Alito argues that the majority opinion “tries to cloud the issue by spending many pages discussing matters that are beside the point.”
“A more brazen abuse of our authority to interpret statutes is hard to recall,” Alito wrote. “The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.”
Alito said that while many will applaud the Supreme Court decision “updating” Title VII, the question before the justices was not whether discrimination based on sexual orientation or gender identity should be banned but whether Congress did that in 1964.
“It indisputably did not,” Alito wrote. “Determined searching has not found a single dictionary from that time that defined ‘sex’ to mean sexual orientation, gender identity, or ‘transgender status.”
For Kavanaugh, it is not just a question of the written word, but of the “ordinary meaning” versus the “literal meaning” of the word. In his dissent, Kavanaugh writes that the courts must adhere to the ordinary meaning.
In his arguments, he included an 1889 case that stated while beans may be scientifically classified as seeds, they are not seen as such “’in commerce’ or ‘in common parlance.’” Another reference he offered comes from an 1893 case stating that while tomatoes are in fact fruit, “common language” places them in the vegetable category.
“Consider a simple example of how ordinary meaning differs from literal meaning. A statutory ban on ‘vehicles in the park’ would literally encompass a baby stroller. But no good judge would interpret the statute that way because the word ‘vehicle,’ in its ordinary meaning, does not encompass baby strollers,” Kavanaugh wrote.