The U.S. Supreme Court declared on Monday that an employer who fires a worker based on sexual orientation or transgender status violates the main federal job-discrimination law, in a decision with implications for school districts as employers and in ongoing legal battles over the rights of transgender students.
Justice Neil M. Gorsuch wrote the opinion for a 6-3 majority in Bostock v. Clayton County, Ga. (Case No. 17-1618) and two consolidated cases involving workers who alleged they were fired on the basis of being gay or transgender.
“In Title VII [of the Civil Rights Act of 1964], Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” he wrote. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Gorsuch was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.
Justice Samuel A. Alito Jr., in a dissent joined by Justice Clarence Thomas, said the majority was trying to “convince readers that it is merely enforcing the terms of the statute, but that is preposterous.”
“Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity’,” Alito wrote. “And in any event, our duty is to interpret statutory terms to mean what they conveyed to reasonable people at the time they were written.”
Alito made multiple references to what the court’s decision may mean for interpreting Title IX of the Education Amendments of 1972, which bars discrimination “based on sex” in federally funded educational programs. He referred to battles over transgender students seeking to use restrooms and locker rooms and play on athletic teams consistent with their gender identity.
In a separate dissent for himself, Justice Brett M. Kavanaugh said it was “appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” who have “worked hard for many decades to achieve equal treatment in fact and in law.”
“Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII,” Kavanaugh said.
Looking to Title IX
The decision was widely praised by education and civil-rights organizations, but met with disappointment by conservative groups.
Lily Eskelsen Garcìa, the president of the National Education Association, said in a statement that the decision “means that educators can no longer be fired at work for who they love or who they are.”
“And since LGBTQ discrimination is sex discrimination under employment discrimination law, it also follows that federal laws proscribing sex discrimination in education and health care also prohibit LGBTQ discrimination,” said Garcìa, whose union led other education groups in filing a friend-of-the-court brief in support of the gay and transgender employees in the cases. “This means that our LGBTQ students will also be protected under federal law from discrimination at school.”
Also on the NEA brief were the American Federation of Teachers, the National School Boards Association, and AASA, the School Superintendents Association.
Chase Strangio, the deputy director for Trans Justice at the American Civil Liberties Union, which represented the transgender female employee who challenged her dismissal by a funeral home in one of the companion cases, said in a conference call with reporters that “it’s going to be really hard for lower courts to explain why this Supreme Court decision means something different for Title IX.”
But John J. Bursch, the vice president for appellate advocacy for the Alliance Defending Freedom, who argued before the justices that transgender status was not covered by Title VII, said in a conference call that “redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics” and in other contexts, such as school restrooms.
He referred to pending cases such as the one in Connecticut in which ADF represents three “cisgender” female high school track athletes who sued the state athletic body over its decision to allow two transgender female students to participate in girls track meets.
The U.S. Department of Education’s office for civil rights recently sided with the three cisgender female athletes and asserted that the Connecticut Interscholastic Athletic Association’s policy of allowing transgender athletes to compete in classifications consistent with their gender identity violates Title IX. That position is consistent with the views that President Donald Trump’s administration took in siding with the employers in the Supreme Court cases.
A Dissent’s Education Concerns
The debates over restrooms, locker rooms, and athletics had marked the oral arguments in the Title VII cases, and Justice Alito spent several sections of his lengthy dissent on those topics.
He said the idea of transgender individuals using restrooms and locker rooms consistent with their gender identity “is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex.”
“Under the court’s decision, … transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are ‘gender fluid,’ that is, individuals whose gender identity is mixed or changes over time.”
Alito noted with apparent dismay the 2016 informal guidance from President Barack Obama’s administration that “warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination” under Title IX. (Alito did not mention that the Trump administration had rescinded that guidance.)
Regarding transgender athletes, Alito referred to the Connecticut case and said the question under Title IX “threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports.”
“The effect of the court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male,” Alito continued.
In the majority opinion, Gorsuch answered Alito, in a sense, by saying that “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”
In his dissent, Alito had more to say about education.
As part of his argument that the Congress that enacted the Civil Rights Act in 1964 could not have understood a protection against discrimination “because of sex” to cover sexual orientation or transgender status, Alito said it was important to take account “of the societal norms of the time.”
Those included psychology’s treatment of homosexuality as a disorder and widespread restrictions on the employment of homosexuals around that time.
“In 1964, it was common for states to bar homosexuals from serving as teachers,” Alito said. “An article summarizing the situation 15 years after Title VII became law reported that ‘all states have statutes that permit the revocation of teaching certificates (or credentials) for immorality, moral turpitude, or unprofessionalism,’ and, the survey added, ‘homosexuality is considered to fall within all three categories.’”
“To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to ‘update’ Title VII,” Alito said. “But that is not our job.”
Religious Freedom Claims
Finally, with respect to education, Alito expressed a fear that the majority opinion will make it more difficult for religious schools to avoid employing teachers who may present conflicts with church teachings.
“Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment,” Alito said. “Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.”
At least some such claims would be blocked by the “ministerial exception” to employment-discrimination laws, he said, noting that the court still has a pending decision about whether religious school lay teachers who provide some religious instruction come under the exception.
“But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for the ministerial exception?” Alito said.
Gorsuch, in a passage in his majority opinion welcomed by religious conservatives, said that like religious employers, “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”
He noted that a religious freedom claim was unsuccessfully raised in the lower courts by the funeral home in one of the cases and was not raised in the Supreme Court.
How various doctrines “protecting religious liberty interact with Title VII are questions for future cases, too,” Gorsuch said.