In a shocking, landmark ruling, the Supreme Court ruled 6-3 this morning that the 1964 Civil Rights Act (and its Title VII) protects LGBT workers from workplace discrimination. This means that it is now illegal to fire an employee because he or she is gay, lesbian, bisexual, or transgender. Believe it or not, it was legal in 29 states (including Texas) to fire someone for being LGBT. That ends today.
The Civil Rights Act prohibited discrimination based on race, color, religion, or national origin in motels, restaurants, movie theatres, and all other public accomodations. Title VII outlawed discrimination”on the basis of sex”. It reads: “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual […] because of such individual’s race, color, religion, sex, or national origin.”
At issue was whether the question of “sex” applies to gay, bisexual, or transgender employees. The court says it does. “An employer who fires an individual merely for being gay or transgender violates Title VII,” wrote Neil Gorsuch in the court’s majority opinion. (He was joined by Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg, John Roberts, and Stephen G. Breyer. Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh dissented.)
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Gorsuch continued. “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
Gorsuch took it a step further: “Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
This ruling, coming from a libertarian justice on a court that Trump stacked with conservatives, is astonishing. Reading news of this shocked me in much the same way as the Court’s landmark 2015 ruling legalizing gay marriage (which also arrived during Pride month). It’s also a major victory for the LGBT community, after a Pride month rocked by parade cancellations and widespread protests against police brutality. (Not to mention the Trump administration’s attempt to argue that workplace protections didn’t apply to the community.) In a year that’s been filled with bad news, today’s news comes as a welcome surprise for activists — and every LGBT employee in America.