The United States Supreme Court has moved a giant leap forward in LGBTQ+ rights with the latest opinion in Bostock v. Clayton County, Georgia. To say this is a HUGE deal is an understatement. In 2015, when the Court solidified same-sex marriage, that right only applied to a smaller subset of people who wanted to marry a person of the same sex. This opinion, however, applied to a much more broad group because pretty much everyone has a job. So, saying that a person cannot be fired for their sexual orientation, gender identity, or gender expression, helps many, many people.
The central dispute in the cases (grouped together as Bostock v. Clayton County, Georgia) is over whether the term “sex” in Title VII (the federal anti-discrimination law that applies to workforces of 15 people or more) includes sexual orientation and gender identity. The law doesn’t mention “sexual orientation” or “gender identity” at all, but Justice Gorsuch, speaking on behalf of the 6 justice majority, said that doesn’t matter. He concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of … sex” and the Court found that the word sex includes sexual orientation, gender identification, and gender expression. This is the first major case on transgender rights. Prior to the decision, it was legal in more than half of the states (including Texas) to discriminate against a person for being gay, bisexual, or transgender. Now, workplace protections extend to millions of people across the nation. This was the first case decided by the Court on LGBTQ+ rights since the retirement in 2018 of Justice Anthony Kennedy, who wrote for the majority in all four of the Court’s prior gay rights decisions.
“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,” Gorsuch wrote. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Kavanaugh filed a dissenting opinion. Noteworthy, he stated public support for gay rights, but disagreed that the correct solution to the case was through the judicial branch. Instead, he felt that Congress should modify the law as Congress sees fit instead of the Court addressing the issue.
“…it is appropriate to acknowledge 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.”
Justice Alito filed a lengthy and extensive dissent, reviewing every law with language similar to the Civil Rights Act that will be affected by the decision. Alito, with Justice Thomas joining, believed that the law should be interpreted based solely on the specific words in the law (which do not say “sexual orientation”) and based on the meaning the law had at the time it was enacted in 1964. The common understanding of sex discrimination in 1964, Justice Alito wrote, was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. If Congress wanted to protect gay and transgender workers, he wrote, it could pass a new law. Alito’s dissent provides a lengthy summary of the other laws with similar language that could be effected by the majority opinion.
The Bostock decision could have reverberations way beyond employment discrimination law. Other areas of federal law also prohibit discrimination based on sex — the Fair Housing Act prohibits it in housing; the Equal Pay Act prohibits it in your paycheck; Title IX prohibits it in education; the Equal Protection Clause of the Constitution prohibits it in government actions. Taking today’s ruling where it inevitably will lead means that each of these areas of law (and every other that applies to sex discrimination) should eventually prohibit discrimination against LGBTQ people as well. We’re not there yet, as future cases will have to decide these matters. But, based on today’s rulings, LGBTQ people should get more and more protections against discrimination in the near future.
As to our area of family law, I think the Bostock case means that judges in parenting disputes should not be able to base their decision on the parent’s sexual orientation, gender identity, or gender expression. In other words, a judge cannot deny a parent custody or restrict his or her access because of the parent’s sexual orientation. A judge cannot deny a parent a relationship with his or her children because of being transgender. A judge cannot use whether a parent dresses masculine or feminine as a basis for critique of parenting roles. This brings forward the roles of LGBTQ+ parents in the family law context from Obergefell and Pavan.
Oyez is my favorite website for all things Supreme Court. Here is their link to Bostock.
SCOTUSblog has many articles of commentary about the decision as well as a link to the briefing by the parties and amici.