supreme court justices

—PHOTO: Fred Schilling, Collection of the Supreme Court of the United States

Front row, left to right: Associate Justice Stephen G. Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel A. Alito. Back row: Associate Justice Neil M. Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Brett M. Kavanaugh.


In a surprise decision that impacts millions of LGBTQ American workers, the U.S. Supreme Court ruled 6-3 today that a decades-old federal law protects LGBTQ employees from job discrimination.

Conservative justices John Roberts and Neil Gorsuch joined the court’s four liberal justices in ruling that Title VII of the Civil Rights Act of 1964, which bars gender discrimination in the workplace, includes discrimination based on gender identity and sexual orientation. (Read the decision here).

Liberal, Democratic-appointed Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elana Kagan and Stephen Breyer signed on to Gorsuch’s opinion.

Prior to today's ruling, 21 states, the District of Columbia, Guam, and Puerto Rico had statutes that protected employees against both sexual orientation and gender identity. Today's ruling will expand the law to include the entire nation.

The ruling resolved a package of three cases brought by employers who had fired gay or transgender workers. The plaintiffs included a transgender funeral home worker, a gay sky-diving instructor and a gay county worker. Two of the plaintiffs died before today’s ruling, but their families continued to pursue the cases.

Trump’s Justice Department had sided with the employers, arguing before the court that Title VII does not apply to LGBTQ Americans. But Trump was surprisingly calm about the ruling, telling reporters, "... 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 Trump administration seemingly has made it a mission to roll back all of the LGBTQ rights gained under former President Barack Obama. Just last week, Trump issued a rule to lift anti-discrimination protections for transgender people in healthcare.

Strict constructionism v. intent

Trump’s Justice Department undoubtedly thought it could count on a “strict constructionist” reading of the law from all five Republican-backed justices. Samuel Alito penned a conservative minority dissent that reflects that kind of thinking.

“There is only one word for what the court has done today: legislation,” Alito wrote in his 54-page dissent. “The document that the court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

“Title VII prohibits discrimination because of sex itselfnot everything that is related to, based on, or defined with reference to, ‘sex,’” he added. 

Clarence Thomas and Brett Kavanaugh also dissented. Kavanaugh wrote that the LGBTQ community has “advanced powerful policy arguments and can take pride in today's result. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgment.” 

Defying expectations

But Roberts and Gorsuch, who are also Republican-backed justices, defied expectations and relied on the law’s stated intent.

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” Gorsuch wrote. “Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.

“But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

James Esseks, director of the ACLU’s LGBTQ & HIV Project, declared today’s ruling “a huge victory for LGBTQ equality.

“Over 50 years ago, black and brown trans women, drag queens, and butch lesbians fought back against police brutality and discrimination that too many LGBTQ people still face,” Esseks wrote in a statement. “The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights. The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law.”

John Bursch, vice president of appellate advocacy for the anti-LGBTQ group Alliance Defending Freedom, was disappointed by the ruling.

Neil Gorsuch

"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.

"There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision-making."

— Justice Neil Gorsuch

“Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts,” Bursch said. “Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities — the ones the law was designed to protect.”

Today’s ruling, like the one that removed all barriers to same-sex marriage, comes during LGBTQ Pride Month, which is celebrated every June.

On June 26, 2015, SCOTUS ruled 5-4 that denying same-sex marriage violates the Fourteenth Amendment, which guarantees equal protection under the law.

That ruling was almost strictly along party lines, but former Justice Kennedy, a Republican appointee, sided with the court’s liberal wing, resulting in a 5-4 decision.


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