Landmark US Supreme Court ruling protects LGBT rights at work

The court ruled 6-3 in favor of trans and gay rights.

The US Supreme Court ruled on Monday that gay and transgender workers are protected by federal civil rights laws in a landmark anti-discrimination decision.

Two Republican appointees joined the court’s four liberal justices to decide the issue in a 6-3 ruling that said the 1964 Civil Rights Act also applied to gay and transgender people, meaning employers cannot fire them because of those characteristics.

Under Title VII of the act, discrimination on the basis of “race, colour, religion, sex, or national origin” is banned. The court’s ruling said the ban on “sex” discrimination covered gay and transgender people.

“An employer who fires an individual merely for being gay or transgender defies the law,” wrote Justice Neil Gorsuch, an appointee of Donald Trump, as he delivered the majority opinion. The decision came five years after the Supreme Court legalised same-sex marriage.

Monday’s ruling, also supported by Chief Justice John Roberts, an appointee of George W Bush, argued that discrimination against gay and transgender people necessarily included judgments about their sex.

Justice Gorsuch noted that an employer who fired a male worker because he was attracted to men “discriminates against him for traits or actions it tolerates in his female colleagues”.

Similarly, he wrote that if an employer fires a person who identified as male at birth but who subsequently identified as female, the employer penalises “traits or actions that it tolerates in an employee identified as female at birth”.

“[T]he individual employee’s sex plays an unmistakable and impermissible role in the discharge decision,” he added.

The Trump administration had argued that Title VII did not protect gay and transgender people. Last week, the administration rolled back protections for transgender workers against discrimination in healthcare that had been instituted under President Barack Obama.

When asked about the decision by reporters, Mr Trump on Monday said: “They’ve ruled and we live with their decision. That’s what it’s all about. We live with the decision of the Supreme Court.”

The decision was hailed by Democrats and LGBTQ charities. Joe Biden, the presumptive Democratic nominee for president, said the ruling was a “momentous step forward for our country”.

Amit Paley, executive director of The Trevor Project, the LGBTQ suicide prevention charity, said the decision “sent a resounding message to LGBTQ youth everywhere that they are free to pursue their talents and dreams”.

The decision was also welcomed by several chief executives.

It marked “a historic day for LGBTQ Americans and we’re proud to stand with this community,” wrote Mary Barra of General Motors. Microsoft’s Satya Nadella called on his social media followers to “use this decision as a catalyst to drive progress in our society”.

Ray Dalio, co-chairman of Bridgewater Associates, said: “History has shown, and logic dictates, that if the system doesn’t strive to create equal opportunity for everyone who is able to work and to provide basic support for everyone who is not, the system will inevitably experience some form of revolution.”

The Supreme Court’s ruling arose from a trio of cases where gay and transgender workers said they had been fired because of those characteristics.

In one, Aimee Stephens had been fired from the funeral home where she worked after she began living as a woman. In another, Gerald Bostock was dismissed from his county job as a child welfare advocate in Georgia after he joined a gay softball league. The third case involved Donald Zarda, who was fired as a skydiving instructor days after mentioning he was gay.

Both Stephens and Zarda have passed away since their cases began in the lower courts.

Three of the Supreme Court’s conservative justices opposed Monday’s ruling, arguing that the decision had gone beyond the text of the law passed by Congress in 1964.

US lawmakers in the House of Representatives and the Senate have previously passed separate bills that ban discrimination on the basis of sexual orientation but none has yet become law.

“There is only one word for what the court has done today: legislation,” wrote Justice Samuel Alito in a dissenting opinion joined by Justice Clarence Thomas. “A more brazen abuse of our authority to interpret statutes is hard to recall,” he added.

Justice Brett Kavanaugh, also an appointee of Mr Trump, wrote in his own dissent: “Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate.”

LGBTQ lawyers have been making this argument for decades, but lower courts have danced around it repeatedly, and the Supreme Court has never entertained it. All of the past LGBTQ rights rulings have relied on other principles, such as liberty, dignity, or that laws can’t be based on hatred. This ruling, though, takes a well-established principle in American law — that there can be no sex discrimination in most walks of life — and says what is entirely logical: this principle includes sexual orientation and gender identity discrimination because sex is an integral part of both.

Which is why today’s decision could have reverberations way beyond employment discrimination law. Other areas of federal law also prohibit discrimination based on sex — the Fair Housing Act prohibits it in housing; the Equal Pay Act prohibits it in your paycheck; Title IX prohibits it in education; the Equal Protection Clause of the Constitution prohibits it in government actions. Taking today’s ruling where it inevitably will lead means that each of these areas of law (and every other that applies to sex discrimination) should eventually prohibit discrimination against LGBTQ people as well. We’re not there yet, as future cases will have to decide these matters. But, based on today’s rulings, LGBTQ people should get more and more protections against discrimination in the near future.

For instance, just last week the Trump administration changed federal regulations that prohibited discrimination in health care based on LGBT status. Those were based on an interpretation of what discrimination based on “sex” was. With today’s ruling, the Trump change should eventually fall by the wayside, as the prohibition against sex discrimination should now apply to LGBT people for the same reasons as in today’s opinion.

Dissenting from today’s opinion were the Court’s two long-standing grumpy conservatives —Justices Samuel Alito and Clarence Thomas — as well as the Court’s newest member, Justice Bret Kavanaugh. Justice Alito wrote a very long dissent for himself and Justice Thomas claiming that the Justices in the majority opinion were legislating from the bench and that any change should come from Congress, not the court. Justice Kavanaugh wrote separately making the same point. But he also ended his opinion against LGBTQ on an oddly congratulatory note, applauding LGBTQ folks for their “extraordinary vision, tenacity, and grit” in using the law to improve their lives.

Two LGBTQ people who sadly will not be able to read Justice Kavanaugh’s praise or join in the celebration today are Aimee Stephens and Donald Zarda. They are two of the three named plaintiffs in the cases today. Zarda died in 2014, and Stephens died earlier this year. Both of their families continued their cases and will be celebrating in their honor today. But it’s a sad coda to today’s celebration that only Gerald Bostock (the other plaintiff in these cases) will be able to celebrate the monumental victory that these three people have brought to America.

ft.com and fatherly.com