The United States’ Supreme Court has ruled that firing a person because of their sexual orientation or gender identity is a form of sex discrimination and therefore illegal. The court’s decision in Bostock v Clayton Countymeans that the employment protections found in the 1964 Civil Rights Act apply to LGBTQ+ persons, who previously could be fired or refused employment for being LGBTQ+ in most states of the USA. 

The ruling was welcomed by business leaders, celebrities and Democratic politicians, with House Speaker Nancy Pelosi (D-Calif.) calling it “a victory for the LGBTQ+ community, for our democracy”. However, conservatives excoriated Trump-appointed Justice Neil Gorsuch, who wrote the court’s decision, calling him a “traitor” for siding with the so-called ‘liberal wing’ of the court. 

While the ruling provides LGBTQ+ persons with protection in employment, Justice Gorsuch’s reasoning will have implications for LGBTQ+ rights in other areas, such as housing and medical treatment, as well as religious liberty, which will take years to work out through the courts. Congress should take the opportunity to pass legislation banning discrimination against LGBTQ+ persons, separate from sex discrimination, while also outlining clearly any exemptions for religious originations. 

FACTS

Gerald Bostock was a child welfare advocate for Clayton County, Georgia, a role at which he excelled, leading the county to win national awards for its work. After a decade of service, Mr Bostock began participating in a gay recreational softball league. Not long afterwards, he was fired for alleged conduct unbecoming a county employee.

Alongside Bostock, the Supreme Court heard the similar cases of Altitude Express Inc. v Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. Like Bostock, Zarda concerned discrimination because of sexual orientation: Donald Zarda was a skydiving instructor, who was fired shortly after coming out as gay. While R.G. & G.R. Harris Funeral Homes Inc., concerned discrimination because of gender identity: Aimee Stephens was a transgender woman, who was born male but identifies as female. After coming out to the funeral home, the funeral home promptly fired Aimee Stephens, stating “this is not going to work out.” Unfortunately, both Donald Zarda and Aimee Stephens died following their dismissals and their cases were continued by their estates.

JUSTICE GORSUCH’S REASONING

Unlike most European countries, the US does not have a standalone ban on discrimination because of sexual orientation or gender identity in employment. Title VII of the Civil Rights Act 1964 prohibits discrimination in employment only on the basis of “race, colour, religion, sex or national origin”. In the present case, the Supreme Court was asked whether discrimination because of sexual orientation or gender identity was included under the heading of sex discrimination.

To interpret Title VII, Justice Gorsuch applied a textualist approach - where the ordinary meaning of the law, not the intention of the lawmaker, is considered. He acknowledged that the meaning of “sex” meant biological sex and did not encompass sexual orientation or gender identity. Yet he then reasoned that sexual orientation and gender identity are inextricably connected to sex, and an employer who discriminates against an employee because of their sexual orientation or gender identity inevitably relies on sex-based rules to reach their decision. He wrote: 

“Consider, for example, an employer with two employees, both of whom are attracted to men… one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” 

Thus, he argued, an employer who discriminates because of sexual orientation or gender identity also discriminates because of sex, which Title VII prohibits.

Justice Gorsuch rebutted the counterargument, put forward by Justice Samuel Alito in his dissenting opinion, that an employer who would fire both male and female employees for being LGBTQ+ is not, therefore, discriminating on the basis of sex. He pointed out that Title VII protects individuals, not groups, and that it is no defence for an employer to say that overall, they treat men and women equally; the question is whether this particular employee was discriminated against because of sex.

CONSERVATIVE JUDGE ACCUSES THE MAJORITY OF JUDICIAL OVERREACH 

Justice Brett Kavanaugh, another Trump-appointee, also criticised the majority decision for usurping the role of Congress, which under the US Constitution is the sole authority for passing, amending and repealing legislation. Justice Kavanaugh noted that the Supreme Court had previously ruled that Title VII did not cover discrimination because of sexual orientation or gender identity and that Congress had considered amending Title VII for that reason, without result. If both past Supreme Courts and Congress deemed Title VII as not protecting LGBTQ+ persons, he asked, how could the Supreme Court rule that it does? He contrasted this situation with discrimination because of age and disability, neither of which are protected under Title VII, but which Congress had later legislated against.

Similarly, the Supreme Court had previously held that discrimination because of motherhood or pregnancy did not constitute sex discrimination under Title VII[1], requiring the passage of the 1978 Pregnancy Discrimination Act. If sexual orientation and gender identity are inextricably connected to sex, according to Justice Gorsuch, why did the Supreme Court not find the same for motherhood and pregnancy, which are arguably as, if not more, connected to sex?

WHAT IMPACT WILL THE JUDGMENT HAVE? 

Whether Justice Gorsuch’s reasoning was correct or not in this case will exercise the minds of legal scholars for some time to come. In the short term, the decision will lead to more litigation, as the courts decide the extent to which discrimination because of sexual orientation and gender identity can be imported into laws prohibiting sex discrimination in housing and medical treatment, where discrimination on the basis of LGBTQ+ identity is still legal. Religious organisations and religious employers are also expected to seek exemptions for themselves. 

Congress’s failure to pass legislation protecting LGTBQ+ persons, while clearly defining the scope and limitations of such protections, means the Supreme Court will have to decide case by case whether to give more weight to the rights of LGBTQ+ persons not to be discriminated against versus the rights of religious persons to practice their religion. The likely result is a patchwork of protections and exemptions, leaving LGBTQ+ persons less protected than other groups, and religious persons confused about their rights and obligations. So, while the immediate outcome of the Supreme Court’s decision is welcome, the fact that the courts, rather than Congress, are resolving the US’s most hot-button social issues shows that American democracy is in crisis.

[1] General Electric Co. v. Gilbert, 429 U.S. 125 (1976)

Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.

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