Supreme Court Says Title VII Includes Protections for Sexual Orientation and Gender Identity

By Aryana Swanson

In a significant ruling in June, the U.S. Supreme Court voted 6 to 3 to include protections for sexual orientation and gender identity under Title VII. The ruling covered three cases the Court had before them, all involving employees who had been fired shortly after revealing that they were homosexual or transgender.

As noted in the majority opinion written by Justice Neil Gorsuch in Gerald Lynn Bostock v. Clayton County, Georgia, “Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1).”

Title VII of the Civil Rights Act of 1964 made it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (§2000e–2(a)(1)). The employers in these cases had said “intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII” (590 U.S. __ 2020).

Justice Samuel Alito, Justice Clarence Thomas, and Justice Brett Kavanaugh dissented and found for the employers. Justice Alito wrote that the scope of the term “sex” in the statute did not include sexual orientation or gender identity during the time it was written and that the duty of Justices is to “interpret statutory terms to mean what they conveyed to reasonable people at the time they were written. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) [emphasis added].”

However, Justice Gorsuch said that the broad language of Title VII provides for liability because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” (590 U.S. __ 2020). He reasoned that the employer would have to first identify the sex of an individual before coming to the conclusion that he or she is homosexual.

The Court relied on the statute’s language to form its conclusion. For example, the statute does not say “solely because of,” so the Court wrote that discrimination based on Title VII’s factors only needs to be a part of the reason an employer refuses to hire or discharge an individual for the action to be unlawful. In other words, even if the main reason for discharge was homosexuality and not sex, sex was still a factor and therefore unlawful under Title VII.

The Court also stressed that the statute says “any individual” and not “any group,” which means that an employer discharging an employee “in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule” (590 U.S. __ 2020).