Supreme Court rules workers can’t be fired for being gay or transgender

Supreme Court rules workers can't be fired for being gay or transgender 1

The Supreme Court said Monday that workers cannot be fired for being gay or transgender, a blockbuster ruling for LGBT rights.

The historic 6-3 decision was written by Justice Neil Gorsuch, a conservative appointed by Donald Trump.

“An individual’s homosexuality or transgender status is not relevant to employment decisions,” Gorsuch wrote in the decision, which applied to three separate cases. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

While workers in about half the country were protected by local laws that prohibit discrimination based on sexual orientation or gender identity, there was no federal law that explicitly barred LGBT workers from being fired on that basis. 

The cases were brought by three workers who said they were fired from their jobs because they were gay or transgender. They argued that Title VII of the Civil Rights Act, which says that employers may not discriminate based on “sex,” also applies to sexual orientation and gender identity. 

Gorsuch was joined by Chief Justice John Roberts, a fellow conservative, and the court’s liberal wing, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented. 

Gerald Bostock, one of the plaintiffs, said in an interview he was “elated.” 

Bostock was fired from his job as a child welfare services coordinator in 2013 after joining a gay softball league.

“This has been a long seven years as you know,” Bostock said. When the decision came out, Bostock said, “I went into shock. My partner and I embraced. I was thinking this has to be good, this has to be good.”

“I’ve just been on a high ever since,” Bostock said. 

The two other plaintiffs in the cases have died. Bostock said that he was sure they were “in heaven on a big cloud, smiling down.” 

Advocacy groups, business leaders and politicians immediately cheered the ruling. 

“This decision sends an unambiguous message that equal protection under the law applies to all and that an employee’s failure to adhere to an employer’s gender stereotype is not a licence to discriminate,” Kristen Browde, co-chair of the National Trans Bar Association, said in a statement. 

Gerald Bostock pictured in front of the Supreme Court on Monday, Oct. 7, 2019.

Tucker Higgins | CNBC

Sarah Kate Ellis, president and CEO of GLAAD, said the decision “affirms what shouldn’t have even been a debate: LGBTQ Americans should be able to work without fear of losing jobs because of who they are.”

Apple CEO Tim Cook, the first Fortune 500 chief executive to come out as gay, tweeted that he was grateful for the ruling. 

“LGBTQ people deserve equal treatment in the workplace and throughout society, and today’s decision further underlines that federal law protects their right to fairness,” Cook wrote. 

Former Vice President Joe Biden, the presumptive Democratic presidential nominee, said the court’s move “confirmed the simple but profoundly American idea that every human being should be treated with respect and dignity.”

Later Monday, Trump said at a White House event that “some people were surprised” with the top court’s decision but “they’ve ruled, and we live with their decision. That’s what it’s all about. We live with the decision of the Supreme Court.” 

The court’s opinion, which was released only online as a precaution against Covid-19, did not immediately load in its entirety, possibly a result of high traffic to the Supreme Court’s website. 

Gorsuch wrote that discriminating against an employee because they are gay or transgender is by definition discrimination on the basis of 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,” Gorsuch wrote.

“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,” he wrote. 

Alito, in a dissent joined by Thomas, wrote that there was “only one word for what the Court has done today: legislation.”

“Title VII prohibits discrimination because of sex itselfnot everything that is related to, based on, or defined with reference to, ‘sex,'” he added. 

Kavanaugh wrote that the policy arguments for amending Title VII were “very weighty.”

“But we are judges, not Members of Congress,” he wrote. “As written, Title VII does not prohibit employment discrimination on the basis of sexual orientation,” he added, noting in a footnote that the legal analysis would apply in a similar way to discrimination on the basis of gender identity. 

The workers who brought the cases are Bostock; Donald Zarda, who was fired from his job as a skydiving instructor after revealing his sexual orientation to a female client; and Aimee Stephens, a transgender funeral director who was fired after announcing her intention to present as a woman.

Only Bostock lived to see the cases decided. Zarda died before the case was argued and his challenge was pursued by his family. Stephens died last month at her home in Detroit from kidney failure, according to her attorneys. 

Bostock said that if he got the chance to speak with himself seven years ago, knowing what he knows today, he would tell the younger version of himself that “it’s going to be OK.”

“I’m not the type that lies down quietly, and I feel like I’ve been pushed down, and honestly I came up swinging when this happened to me,” he said. 

Gorsuch hinted at his feelings about the cases during oral arguments in October, telling Stephens’ attorney David Cole that he was “with you” on the text of the Civil Rights Act. But he warned that the case could lead to “massive social upheaval.”

In his opinion, Gorsuch made it clear that he viewed the text as the deciding factor. 

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male  employees,” Gorsuch wrote.

Gorsuch added: “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

Tom Mew, Bostock’s attorney, said in an interview that “it’s important for people to remember that while Gerald’s journey has been a very long one to get to this day, it is early days, in a legal sense, in Gerald’s underlying case.” 

An attorney for Clayton County, Georgia, Bostock’s former employer, did not immediately respond to a request for comment. 

Saul Zabell, an attorney for Zarda’s former employer Altitude Express, said in a statement that he was surprised by the decision.

“The court clearly worked very hard to make sure that congressional inaction on LGBTQ+ rights would not go unrepaired,” Zabell said. 

“We no longer live in a society where a Gay couple can be married on Friday and fired for that marriage on Monday.”  

He added that Altitude Express maintained that Zarda was fired “for inappropriately touching a female customer” and said “we look forward to having a second jury clear Altitude Express of any wrongdoing, just as the first jury trial revealed.”

John Bursch, an attorney for the funeral home that employed Stephens, said in a statement that the decision was disappointing. 

“Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts,” Bursch said. “Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities—the ones the law was designed to protect.”

The cases are Gerald Lynn Bostock v. Clayton County, Georgia; Altitude Express v. Melissa Zarda; and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.