Steve Treagus

History will remember June 15, 2020, as the day of the US Supreme Court’s landmark decision, Bostock v. Clayton County,  affirming that employers may not terminate workers based on their sexual orientation or gender identity.

This case built on decades of slow, hard-won progress for LGBTQ workers’ rights, and takes its place among pivotal cases that paved its way, such as:

• Romer v. Evans—prohibiting amendment to state constitution to exclude LGBTQ people from anti-discrimination laws;
• Lawrence v. Texas—ruling that anti-sodomy laws are unconstitutional; and
• Obergefell v. Hodges—permitting same-sex marriage

Bostock’s Holding & Background

• Bostock v. Clayton County—the county fired Gerald Bostock for joining a gay softball league after a decade of work as a child welfare advocate

• Altitude Express v. Zarda—skydiving instructor Donald Zarda was fired after telling a customer he was gay

• RG & GR Funeral Homes v. EEOC—the funeral home fired Aimee Stephens after she told her employer she planned to live and work full-time as a woman; Stephens had presented as a male upon hire six years prior

Sadly, only Gerald Bostock lived to see and celebrate the ruling. While the cases were pending, Zarda died in a base-jumping accident and Stephens succumbed to cancer.

“Because of Sex” Covers LGBTQ Workers’ Sexual Orientation & Gender Identity

Neil Gorsuch, a conservative Trump-appointee, wrote the majority opinion in which Chief Justice Roberts, also a conservative, and the liberal members of the court joined. The decision was 6 — 3, with conservatives Alito, Thomas, and Kavanaugh dissenting. Gorsuch’s approach and judicial philosophy are based on “textualism,” which is associated with conservatism but led to the pro-LGBTQ-rights result that many liberals and progressives are celebrating.

Gorsuch explained his textualist judicial approach: “Only the words on the page constitute the law adopted by Congress and approved by the President” and Title VII says it is unlawful “for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate … because of … sex.” Gorsuch then looked to the “ordinary public meaning” of the words in Title VII. He interpreted the ordinary meaning of “sex” in the legal standard prohibiting discrimination “because of sex” as understood in 1964 when Title VII was enacted, to mean “status as either male or female [as] determined by reproductive biology,” according to contemporaneous dictionaries.*

Gorsuch then observes that the concepts of sexual orientation and gender identity make no sense without reference to sex. For example, he notes that it’s discrimination based on sex to:

• Fire a male employee for being attracted to men, but not a female employee for being attracted to men (sexual orientation discrimination)

• Fire a transgender employee who identified as male at birth but now identifies as female, but not an employee who identified as female at birth and still identifies as female (gender identity discrimination)

Unintended Consequences Guaranteed

It doesn’t matter that in 1964 Congress probably wasn’t thinking of sexual orientation or gender identity when drafting Title VII’s prohibition on “sex” discrimination. Unintended consequences are practically guaranteed by major initiatives like Title VII, according to Gorsuch. Even though the drafters may not have foreseen the implications, “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.”

Similarly, they may not have expected it to apply to motherhood discrimination or same-sex harassment, both of which are forbidden by Title VII under well-established Supreme Court precedents hammered out in the decades following the Act’s enactment.

Broad & Beneficial LGBTQ Workplace Implications

This decision has broad and beneficial implications for LGBTQ workers’ rights. USA Today reports that about 11 million people in the US identify as LGBTQ, and 88% of them are employed. About half (52%) of all LGBTQ-identifying Americans lived in states that do not explicitly provide workplace protections at the time of the ruling. Bostock makes it illegal to discriminate in the workplace based on LGBTQ status in all fifty states.

Prior to Bostock, these workers were not protected by the laws of nearly 80% of the states (although some local laws, the US Equal Employment Opportunity Commission, and a small number of federal jurisdictions offered greater protections).

Religious Employers, Locker Rooms, & Bathrooms

The majority’s opinion does not address religious objections or other laws besides Title VII that prohibit discrimination “because of sex.” But these other laws, including Title IX of the Education Amendments of 1972, arguably now ban bias against LGBTQ workers in a variety of new contexts.

Gorsuch didn’t address whether employers with religious objections may seek exemptions from Bostock’s holding, but he left this door open. RG & GR Funeral Homes (one of the parties) had originally claimed a religious exemption from Title VII, but later dropped that claim, so the court did not consider it. Amici Curiae (“friends of the court”) briefs were also filed by non-parties such as the National Association of Evangelicals and the United States Conference of Catholic Bishops to argue for a religion-based exemption. Gorsuch wrote that, while this case would not address the religion issue, the court is “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” The court (pre-Gorsuch) has already shown that it takes religious liberty issues seriously.

Justice Kavanaugh, dissenting in Bostock, quotes a previous cake-baker case: “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, however, was saying that he disagreed that Title VII protects LGBTQ workers, and was quoting the cake-baker case to make his point — a rather backhanded manner of affirming the “dignity and worth” of these LGBTQ workers.

But the court’s majority left all these issues for another day: “While other employers in other cases may raise free exercise [of religion] arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”

Justice Alito (joined by Justice Thomas) spends much of his dissent throwing up hypothetical employer obligations to provide things ranging from healthcare for gender-reassignment surgery, to gender-neutral restrooms, to employment for gay teachers and ministers. He points to more than 100 federal laws that ban bias based on “sex,” and to Bostock’s potential as precedent on which future courts may rely to interpret the term broadly. Both Alito’s and Kavanaugh’s dissents also fault the majority opinion for “rewriting” Title VII rather than interpreting the law as written.

Writing for the majority, however, Gorsuch remarks that:

The employers [who litigated Bostock—and presumably, the dissenters as well] worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.