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.

Link to the Court’s opinion in Bostock v. Clayton County, Georgia.

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.

Read the NY Times article about the Bostock Decision here.

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Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

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Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

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Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

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A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.