In a 6-3 decision, the U.S. Supreme Court announced this week that the language of Title VII of the Civil Rights Act of 1964 prohibiting discrimination “because of sex” applies to sexual minorities, including people who are gay or openly transgender. Therefore, it is now illegal nationwide to discriminate against these people.
Until this decision, it was still presumptively legal to fire people for being gay, lesbian or transgender in 28 states. The Trump administration, opposing the position of its own EEOC, argued that Title VII could not protect gay and transgender people because Congress had not intended that result when it passed the law in 1964.
But in the past, the Supreme Court has held on more than one occasion that the principles behind Title VII allow the law to encompass types of discrimination that had not been originally envisioned by the Congress that passed the law.
For example, in 1989’s Price Waterhouse v. Hopkins, the high court ruled that the language “because of sex” in Title VII covers the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” In that case, a woman had been denied partnership because she was thought to be insufficiently feminine.
‘Because of sex’ encompasses all gender-based employment decisions
This week’s ruling was written by Justice Neil Gorsuch and was joined by Chief Justice John Roberts and justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer. Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented.
The issue came down to what was meant by the prohibition on discrimination based on sex. Gorsuch was explicit that the language meant that employment decisions cannot differ based on the gender of the worker.
“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,” he wrote for the majority. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The ruling comes in regard to several consolidated cases. In one, a former county child welfare worker was fired after word got out that he had joined a gay men’s softball league. In another, a New York skydiving instructor was fired for being gay. In a third, a transgender funeral director was fired shortly after revealing that she would be transitioning from male to female.
The ruling makes clear that employers may not fire someone based on an assumption that their customers would not approve of the person’s gender.
It also explicitly states that “An employer who fires an individual merely for being gay or transgender defies the law.”