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Supreme Court: Title VII Protections Include Sexual Orientation and Transgender Status

WASHINGTON, DC - JUNE 15: Joseph Fons holding a Pride Flag, stands in front of the U.S. Supreme Court building after the court ruled that LGBTQ people can not be disciplined or fired based on their sexual orientation June 15, 2020 in Washington, DC. With Chief Justice John Roberts and Justice Neil Gorsuch joining the Democratic appointees, the court ruled 6-3 that the Civil Rights Act of 1964 bans bias based on sexual orientation or gender identity. (Photo by Chip Somodevilla/Getty Images)
By Laura Temme, Esq. | Last updated on

In a massive victory for LGBTQ+ advocates, the Supreme Court has ruled that Title VII the Civil Rights Act of 1964 prohibits employers from discriminating based on their sexual orientation or transgender status.

The decision came as a surprise to many, given the increased number of conservative justices on the Court and pressure from the Trump Administration to deny protection under Title VII. Perhaps even more surprising, Justice Neil Gorsuch not only joined the majority but also penned the Court's opinion.

Looking Beyond Legislative Intent

The groundbreaking decision this week in Bostock v. Clayton County reads sexual orientation and transgender status into Title VII's command that employers cannot fire, refuse to hire, or discriminate against someone because of their "race, color, religion, sex, or national origin."

The Court conceded that Congress likely did not have sexual orientation in mind when the Civil Rights Act was passed. However, the majority found that if an employer fires a male employee because he dates men, but not a female employee who dates men, it amounts to discrimination based on sex.

The 1964 Congress likely didn't anticipate the Act being used to protect against pregnancy discrimination either. But, the majority reasoned, "the limits of the drafters' imagination supply no reason to ignore the law's demands."

Gorsuch Sticks to Textualist Roots

Justice Gorsuch has historically been a principled textualist - relying on the plain text of statutes rather than attempting to determine legislative intent. In fact, his dedication to textualism is probably the most distinctive aspect of his identity as a judge. On the other hand, Justice Gorsuch has also made it clear that he does not think courts should be drivers of social change.

The three cases addressed by this opinion pitted these two ideals against each other. Many wondered if Gorsuch would hold fast to his textualist roots, despite the massive social connotations of deciding Title VII applied to sexual orientation and transgender status.

But, it seems, the question was a simple one for Justice Gorsuch to answer:

"The answer is clear. 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."

The majority concluded that it is impossible to discriminate against someone for being transgender or homosexual without discriminating based on sex. Therefore, those traits are protected by Title VII.

The Court's Approach to Gender Pronouns

A more subtle, but equally groundbreaking, aspect of the opinion is the Court's pronoun choices concerning plaintiff Aimee Stephens. The Supreme Court uses "she/her" pronouns to reference Ms. Stephens, despite the DOJ's refusal to do so. Several federal courts have also declined to use transgender litigants' chosen pronouns.

The Supreme Court's choice speaks volumes. It demonstrates a respect for not only Ms. Stephen's identity, but for the transgender community in general. And although there are many more challenges on the horizon for people who are transgender, including discrimination in healthcare, it just might signal that more protection is on the way.

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