In a year that is not half complete and already full of unimaginable heartbreaks and disappointments, the U.S. Supreme Court delivered an opinion that is a cause for celebration. Fittingly handed down during Pride Month, as we recognize the 1969 Stonewall Uprising in Manhattan, Bostock v. Clayton County, Georgia held that an employer who fires an employee for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964.

Title VII prohibits discrimination in the workplace based on race, color, religion, sex, or national origin.  The question in Bostock is whether the meaning of “sex” includes sexual orientation or gender identity.

Up until Monday, the vast majority of courts had answered the question in the negative–that “sex” did not include sexual orientation or gender identity. However, the U.S. Supreme Court invalidated that in a ruling that is a major win for gay and transgender workers, and for all who care about equality.

Backstory to Bostock

Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964.

The statute provides, “It shall be an unlawful employment practice for an employer (1) 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…”

The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay but the Second and Sixth Circuits held that discrimination on the basis of sexual orientation does violate Title VII.

The Bostock Decision

Remarkably, Bostock is a 6-3 opinion. The author was Justice Neil M. Gorsuch, an appointee of President Donald J. Trump. Chief Justice John G. Roberts, who was appointed by former President George W. Bush, joined the generally liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Justice Samuel A. Alito filed a lengthy and acerbic dissent, joined by Justice Clarence Thomas, whereas Justice Brett M. Kavanaugh filed a separate dissent.

Gorsuch claims to apply textualism in “the ordinary public meaning of the statue’s language at the time of the law’s adoption” to elicit a straightforward rule: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex…[I]f changing the employee’s sex would have yielded a different choice by the employer—a stator violation has occurred.”

The opinion noted that the parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. It went on to note the “the ordinary meanings of ‘because of’  ‘discriminate’ and ‘individual.’”

From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges:

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is ‘simple but momentous’: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.”

Bostock says that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The ruling goes on to say, “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The Bostock Dissenting Opinions

Both of the dissenting opinions argue that the Court usurped the authority of Congress and created a statutory interpretation that essentially updated Title VII to include sexual orientation and gender identity when it is clear that “because of sex” does not include the concepts of sexual orientation or gender identity.

The dissents cite references to the ordinary meaning of “because of sex” in 1964, setting forth an instructive and painful history lesson. For example, federal and state laws prohibited homosexuals from being employed in federal agencies, receiving security clearances, or becoming teachers or other licensed professionals, including lawyers.

Both Alito’s and Kavanaugh’s dissents point to congressional and judicial actions since the Civil Rights
Act was passed as proof of the meaning of sex discrimination:

  • The first 10 U.S. Courts of Appeals to consider whether Title VII prohibits sexual orientation said no. This includes 30 judges.
  • Many federal statutes prohibit sex discrimination and many federal statutes also prohibit sexual orientation discrimination. But all of the sexual orientation statutes expressly prohibit sexual orientation discrimination in addition to expressly prohibiting sex discrimination.
  • Congress has never defined sex discrimination to encompass sexual orientation discrimination. Numerous bills have been introduced to add both “sexual orientation” and “gender identity” to the five categories of prohibited discrimination in Title VII. None have passed both houses.

Bostock’s Impact on the Legal Profession

If Bostock opens the door to a parade of policy horribles, new legislation, and lawsuits, as laid out in the dissents, the result could mean more work for lawyers. But that will reveal itself down the road.

Looking at the issue closer to home, and on a more personal level, I caught up with Moses Suarez, a partner at SmithAmundsen and president of LAGBAC (The Lesbian and Gay Bar Association of Chicago), for his reactions to the opinion.

“It was a welcomed surprise to learn about the Bostock decision,” Suarez said. “What was even more surprising is that it had conservative justices’ support, 6-3.”

While Title VII protects persons from various types of discrimination, he noted, it did not include protection from discrimination on the basis of sexual orientation. Suarez went on to share that “on a personal level, and as a Latino and president of LAGBAC, Bostock gives me peace and security.”

A native of South Texas, Suarez explained that part of his decision to relocate to Chicago after law school were protections offered by the City of Chicago (which passed the Human Rights Ordinance in 1988 protecting against sexual orientation discrimination) and the State of Illinois (which protected lesbian, gay, bisexual, and transgender persons from discrimination in the Illinois Human Rights Act in 2006).

He noted that living in Chicago gives a perspective different from the lived reality for gay and trans people in smaller towns.

“Bostock gives all LGBTQ+ American employees access to justice across the country, not just in large metropolitan cities or progressive communities,” Suarez explained. “America is a beautiful country and the land of freedom and opportunity. LGBTQ+ persons should be free to live and work openly and authentically wherever they are on American soil.”

I couldn’t agree more.

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