In a historic victory for gay and transgender rights, the U.S. Supreme Court ruled Monday that federal law prohibits employment discrimination based on sexual orientation or gender identity — discrimination currently allowed by laws in 27 states.
In a 6-3 decision, the court said the 1964 Civil Rights Act, which bars employers with 15 employees or more from discriminating on the basis of sex, requires them to treat male and female employees equally regardless of their sexuality or biological gender at birth — regardless of whether they are gay or lesbian, straight or transgender.
The ruling was not widely expected from a court with a conservative majority. Even more surprising was the identity of the author: Justice Neil Gorsuch, an appointee of President Trump.
“An individual’s homosexuality or transgender status is not relevant to employment decisions,” Gorsuch wrote. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Though members of Congress who passed the Civil Rights Act may not have intended to apply it to gay, lesbian or transgender workers, Gorsuch said, the wording of the 1964 law explicitly requires equal treatment of individuals regardless of gender.
“If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred,” Gorsuch said.
He was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented. In an opinion joined by Thomas, Alito accused the majority of legislating from the bench and called its reasoning “preposterous.”
“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,” Alito said.
“In 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment,” Alito said. While those views are generally rejected today, he said, they show that the federal law was not intended to cover gays or lesbians.
In a separate dissent, Kavanaugh, Trump’s other appointee, acknowledged that the ruling was “an important victory” for the gay-rights community but said it misinterpreted the law.
“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Kavanaugh wrote. “Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this court’s, to amend” the law.
The decision comes five years after the court ruled that gays and lesbians have a constitutional right to marry their chosen partner, and seven years after the justices allowed same-sex marriages in California. But as gay-rights advocates observed at the time, under those rulings a gay or lesbian employee could be legally married on Sunday and, in many states, fired from work on Monday.
“For the first time in the country’s history, LGBTQ people in all 50 states are guaranteed the protection of the law when it comes to hiring, firing and their terms of employment,” said Nan Aron, president of the civil rights group Alliance for Justice.
Gov. Gavin Newsom said the ruling “brings the country in line with what has long been California law.” California’s Democratic senators, Kamala Harris and Dianne Feinstein, both praised the decision, and Feinstein called on Senate Majority Leader Mitch McConnell to allow a vote on legislation that would add the same protections against discrimination to laws on health care, education and housing.
On the other side, Carrie Severino, president of the conservative Judicial Crisis Network, said the ruling was “an ominous sign for anyone concerned about the future of representative democracy.”
The court had ruled in 1989 that a worker could not be fired for not conforming to male or female stereotypes in appearance or behavior, but Monday’s ruling was its first ever on transgender rights. Gorsuch said he reached his conclusion because the law treats employees as individuals, not as members of groups.
“An employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally,” he said. “But in both cases the employer fires an individual in part because of sex.”
The court ruled in the cases of Gerald Bostock, a gay man fired as a child welfare worker for a county in Georgia; Donald Zarda, a gay man fired as a skydiving instructor in New York; and Aimee Stephens, a funeral home worker in Michigan who was fired after coming out as transgender. Zarda died in a skydiving accident in 2014, and Stephens died last month. Their estates took up their lawsuits.
“Today, we can go to work without the fear of being fired for who we are and who we love,” Bostock said in a statement released by the Human Rights Campaign, a gay-rights group.
The case was limited to employment disputes and left other issues unresolved. Gorsuch, in the majority opinion, noted that the court was not addressing disputes over school restrooms and locker rooms for transgender students or claims that equal treatment would violate an employer’s religious rights.
The justices are due to rule shortly on Trump administration rules that would allow employers to deny contraceptive coverage to employees for religious or moral reasons. But Monday’s ruling could doom another recent administration rule that would let employers deny health coverage, under the Affordable Care Act, to gay, lesbian or transgender employees. That law also prohibits discrimination based on sex.
Another unresolved issue is the administration’s nearly total ban on transgender military service, covered by laws separate from those regulating private employers.
“There are still a lot of questions the court left open for the future,” said Luke Boso, a University of San Francisco constitutional law professor. But he said the court “likes to stay close to where public opinion is,” and polls indicate majorities in favor of equal treatment for LGBTQ persons.
Matt Coles, a law professor at UC Hastings in San Francisco, recalled a 1979 ruling by the federal appeals court in San Francisco that said it was “obvious” sex discrimination laws did not apply to lesbians or gays. In the current case, he said, lower courts, and Monday’s Supreme Court majority, found it equally obvious that the laws applied more broadly.
“What changed, I think, is the social understanding of who gay people are, who LGBT people are,” Coles said.