Opinion analysis: Federal employment discrimination law protects gay and transgender employees (Updated)

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of sex.”

Today the Supreme Court, by a vote of 6-3, ruled that even if Congress may not have had discrimination based on sexual orientation or transgender status in mind when it enacted the landmark law over a half century ago, Title VII’s ban on discrimination protects gay, lesbian and transgender employees. Because fewer than half of the 50 states currently ban employment discrimination based on gender identity or sexual orientation, today’s decision is a major victory for LGBT employees.

The question came to the court in three different cases, all argued on the same day last October. Donald Zarda, a skydiving instructor, and Gerald Bostock, a child-welfare-services coordinator for Clayton County, Georgia, filed lawsuits in federal court alleging that they were fired because they were gay, which violated Title VII. In Zarda’s case, which was continued by his estate after he died in a base-jumping accident in 2014, the U.S. Court of Appeals for the 2nd Circuit agreed with Zarda that Title VII bars discrimination based on sexual orientation. But the U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion in Bostock’s case.

The Equal Employment Opportunity Commission filed the third lawsuit, involving the rights of transgender employees, in federal district court in Michigan against R.G. & G.R. Harris Funeral Homes after the funeral home fired Aimee Stephens, a funeral director and embalmer who announced that she would begin living as a woman. (Stephens died on May 12 from complications from kidney failure, but her wife, Donna, took her place in the lawsuit.) The district court agreed with the funeral home that Title VII does not protect transgender employees from discrimination, but the U.S. Court of Appeals for the 6th Circuit reversed. The justices agreed to hear the cases last spring. Although the two cases involving discrimination based on sexual orientation were argued separately from the case involving discrimination based on gender identity, the court issued one ruling this morning that covered all three cases. Justice Neil Gorsuch wrote for the majority, in an opinion that was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Gorsuch framed the question before the court as a straightforward one: “Today,” he wrote, “we must decide whether an employer can fire someone simply for being homosexual or transgender.” The answer to that question, he continued, “is clear.” When an employer fires an employee “for being homosexual or transgender,” that employer “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.”

Gorsuch began by explaining that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law. Here, he reasoned, the word “sex” means either male or female. Under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” All that matters, Gorsuch stressed, is whether “changing the employee’s sex would have yielded a different choice by the employer.” As an example, Gorsuch offered the case of an employer with two employees who are both attracted to men and are, for all intents and purposes, identical, but one is male and one is female. If the employer fires the male employee only because he is attracted to men, while keeping the female employee, Gorsuch wrote, the employer has violated Title VII.

Gorsuch rejected the idea that because Congress did not address sexual orientation or transgender status specifically in Title VII, Title VII does not protect LGBT employees. Discrimination against LGBT employees, Gorsuch made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.” Moreover, Gorsuch added, there is no “such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.” Rather, Gorsuch explained, if Congress establishes a broad rule without any exceptions, “courts apply the broad rule.”

The employers’ argument that Congress has considered, but failed to pass, bills that would clarify that Title VII’s protections apply to LGBT employees got similarly short shrift. We don’t know why those bills didn’t pass, Gorsuch explained, but one reason might have been that Congress believed that gay, lesbian and transgender employees were already covered by Title VII. “All we can know for certain,” Gorsuch wrote, “is that speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.”

Turning next to the employers’ argument that most people in 1964 would not have expected Title VII to apply to LGBT employees, Gorsuch pointed out that the employers suggest not “that the statutory language bears some other meaning,” but “that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text.” That argument asks the court to “merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.” But even if it were true that no one in 1964 would have expected this result (and Gorsuch pointed to lawsuits filed by LGBT employees in the late 1960s and early 1970s to counter that “at least some people foresaw this potential application”), Gorsuch stressed, that “is exactly the sort of reasoning this Court has long rejected.” Indeed, Gorsuch observed, “many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’” when Congress passed the law in 1964.

Gorsuch pushed back on another argument by the employers, who invoked a popular principle of statutory interpretation, the idea that Congress did not intend to “hide an elephant in a mousehole.” Gorsuch explained that the principle is intended to recognize that when Congress wants to make important changes to a regulatory scheme, it does so clearly, rather than using “vague terms or ancillary provisions.” And Gorsuch agreed that today’s ruling “is an elephant.” But Title VII’s ban on sex discrimination in employment, Gorsuch emphasized, is no mousehole, but instead “a major piece of federal civil rights legislation” “written in starkly broad terms.” “This elephant has never hidden in a mousehole,” Gorsuch concluded; “it has been standing before us all along.”

Gorsuch addressed some of the broader concerns that the employers had raised in the three cases, about the effect of the court’s ruling on issues like bathrooms in the workplace, locker rooms and dress codes. None of those issues, Gorsuch reiterated, were before the court in these cases. Instead, he stressed, the court is ruling only that an “employer who fires an individual merely for being gay or transgender defies the law.” Whether sex-segregated bathrooms or locker rooms or dress codes might violate Title VII “are questions for future cases,” Gorsuch wrote.

The same is true, Gorsuch added, for questions involving the relationship between Title VII and federal laws and constitutional provisions protecting religious freedom. Although “other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”

Justice Samuel Alito filed a sharp dissent that was joined by Justice Clarence Thomas. While conceding that the result that the majority reached “no doubt arises from humane and generous impulses,” Alito stressed that there “is only one word for what the Court has done today: legislation.” He compared the majority’s opinion to a “pirate ship,” writing that although it sails “under a textualist flag” – that is, it purports to adhere to the text of Title VII – “what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that court should ‘update’ old statutes so that they better reflect the current values of society.” “If the Court finds it appropriate to adopt this theory,” Alito complained, “it should own up to what it is doing.”

He noted that last year the House of Representatives passed a bill that would make clear that Title VII’s ban on sex discrimination includes discrimination based on sexual orientation and gender identity, but that the bill stalled in the Senate. Today, Alito contended, his colleagues in the majority have “essentially taken” that bill “and issued it under the guise of statutory interpretation. A more brazen abuse of our authority,” Alito suggested, “is hard to recall.” The real question before the court, Alito stressed, is “not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not,” Alito argued.

Alito warned that today’s ruling “is virtually certain to have far-reaching consequences” that will include, among other things, threats to “threaten freedom of religion, freedom of speech, and personal privacy and safety.” He noted that myriad federal laws, like Title VII, ban discrimination “because of sex,” including the Fair Housing Act and Title IX, which bars discrimination in education. And he described the court’s “brusque refusal to consider the consequences of its reasoning” as “irresponsible,” because it “greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution.”

Justice Brett Kavanaugh filed his own dissenting opinion. He began by acknowledging that the arguments for “amending” Title VII “are very weighty.” He also observed that the Supreme Court “has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth.’” But, he continued, the job of judges is “not to make or amend the law,” and, as it currently stands, “Title VII does not prohibit employment discrimination because of sexual orientation.” (In a footnote, Kavanaugh indicated that although his dissenting opinion refers only to discrimination based on sexual orientation, his analysis would also apply “in much the same way” to discrimination based on gender identity.)

Kavanaugh contended (and appeared to agree with his colleagues in the majority) that courts should follow the ordinary meaning of the words in a statute, because that is how both members of Congress and the public would understand the law. But if the ordinary meaning is not the same as the literal meaning, Kavanaugh continued, then courts should employ the ordinary meaning. And here, in Kavanaugh’s view, the ordinary meaning of the phrase “discriminate because of sex” does not extend to discrimination based on sexual orientation.

Because Title VII as drafted does not protect gay and lesbian employees, Kavanaugh continued, “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” And, he added, “when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical” about the idea that judges make their decisions based on the law, rather than on their personal preferences. “The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”

Kavanaugh concluded by acknowledging “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.” But Kavanaugh reiterated his belief that Congress, rather the Supreme Court, should have been the source of that result.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of respondent Stephens in Harris Funeral Homes v. EEOC. The author of this post is not affiliated with the firm.]

This post was originally published at Howe on the Court.