U.S. Supreme Court endorses gay, transgender worker protections

A better title would be “Supreme Court holds that Title VII prohibits gay, transgender employment discrimination.”

Titles like these make people think that the Supreme Court is “endorsing” or “rejecting” gay and transgender worker protections. But the difference between the majority and minority here wasn’t about “should we have a law protecting gay and transgender workers from employment discrimination?” It was “do we already have a law protecting gay and transgender workers from employment discrimination.” The majority, in an opinion authored by Justice Gorsuch—a dedicated textualist—said that such discrimination violates the 1964 Civil Rights Act’s prohibition on discrimination “because of sex.” I happen to agree, being in the camp that believes “the law says what it says, not want Congress wanted it to mean.” But it’s important to understand that the upshot of this decision is that “Congress, in 1964, already prohibited employment discrimination against gay and transgender people.” That’s a pretty remarkable outcome!

In one of the appellate decisions leading up to this, Judge Lynch of the Second Circuit dissented, agreeing with the positions that Alito, Kavanaugh, and Thomas would take, that Title VII does not protect gay and transgender workers. He’s an Obama appointee, born in Brooklyn. His take: https://www.nytimes.com/2020/06/15/us/gay-transgender-worker...

> “Speaking solely as a citizen,” he wrote, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.”

> “I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half-century ago — until I actually woke up and realized that I must have been still asleep and dreaming,” Judge Lynch wrote. “Because we all know that Congress did no such thing.”

Here's the decision: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

The dissenters basically believe that “race, color, religion, sex, or national origin.” doesn't include "sexual orientation" or "gender identity" so legislation would need to be passed to change that.

If you want a good tech example of how courts evolve the definition of phrases as society evolves, you need look no farther than the word "eavesdropping." We use that word all the time today, but why do we call it that? When towns started to give way to cities, the spacing between houses began to shrink to the point where rain could cause water to spill off the roof of one house onto their neighbors property, a process that was called eaves dropping because the water dropped off the eaves of the roofs. Who owned that water and who was liable for the damages it might cause became a thing courts needed to address. That English common law decision, that courts could adjudicate the ownership of and damages caused by things that unintentionally pierced property boundaries "because water" is today the legal basis for a broad class of infosec law that we think of as eavesdropping law.

EDIT: HN won't let me respond to the question below on sources. This comes from a physical copy of the 1911 Encyclopedia Britanica, which has Eavesdropping as an entry and only discusses the water dropping off roofs meaning, strongly suggesting that our modern use of the term had not become common by that point.

Unfortunately it comes at the same time that the administration rolled back healthcare protections for transgender people. Must be terrifying for someone to make your basic humanity a political football. SCOTUS rulings are much more durable than executive actions though.

The actual decision, BOSTOCK v. CLAYTON COUNTY, GEORGIA, is here [1]

[1] https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

Dissenting opinions start at page 38: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

Related question for discussion: Do you believe dress codes that have different standards for men and women should be outlawed? For example, if a man wants to "cross-dress" at work in front of clients and complies with the female dress code it follows from the reasoning of this ruling he should be allowed to.

> 6-3 ruling represented the biggest moment for LGBT rights

Why did 3 vote against? Is there an explanation for their reasoning?

There appears to be something of a contradiction in the majority opinion:

From page 2: "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. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands."

Then later, on page 4:

"The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule."

The Majority refuses to limit the scope of Title VII simply because the drafters did not consider gay and trans workers when they made the law, and also penalizes those same drafters for not creating exceptions for individuals they lacked the imagination to think of to start with.

From https://www.wsj.com/articles/supreme-court-rules-for-gay-rig...:

> “‘Sex,’ ‘sexual orientation,’ and ‘gender identity,’ are different concepts,” Justice Alito wrote, observing that repeated efforts to explicitly add the latter terms to Title VII have died in Congress. During debates over the 1964 Civil Rights Act, no member of Congress “said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex,” Justice Alito wrote.

I don't see how the justices who supported this decision can possibly claim that the word 'sex', which has a specific definition that was even more rigid in the 60s, can somehow include 'sexual orientation' or 'gender identity' which are entirely different concepts. This does seem like legislation by Supreme Court.

Political affiliation otoh, which in every other western democracy with anti-discrimination laws usually goes right alongside religion remains an unprotected category in the US

For all the legalese that occurs inside a courtroom, SCOTUS decisions are surprisingly accessible. The beginning of the opinion is a lovely bit of prose:

> Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

> 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. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extra-textual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Continuing:

> From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on 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. 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. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).

> The statute’s message for our cases is equally simple and momentous: 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. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. 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.

> That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.

https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

The dissenters are just saying that they existing law doesn't cover gays and LGTB etc. Not that are against it. Meaning the court cannot make, but just interpret, laws, and so on.

But no doubt if the law was passed today it would include "sexual orientation"

Lets not pretend that a company won't just point to some other reason to fire the person. Really what stops that with this ruling?

Should I interpret the fact that the majority opinion opposes the trump administration and was written by trump’s appointee as the supreme court’s way of putting trump in his place?

I think this is a good ruling both for the outcome and the logic behind it. I would still like to see a more general change in Title VII though: instead of listing categories (sex, race, etc) as if there is a single master list of groups deserving of protection, the rule should be Any factor that is beyond an individual's control AND is not relevant otherwise (not relevant to the job for employment questions). This would prevent this weird need to fit new groups into old categories while also continuing both the spirit of the original law and of freedom in general.

From the majority opinion: "The parties concede that the term 'sex' in 1964 referred to the biological distinctions between male and female."

I am not a lawyer but this sounds to me like the Supreme Court just admitted that while the text of the law doesn't include protection for gay or transgendered persons, they are going to retroactively "understand the term" as though it does.

How, then, can we assume any of the laws mean what the text says when a court can decide words mean something else? I have to agree with the dissent in this case; amending the Civil Rights to update, expand, or clarify the definition "sex" is the surest way to protect gay and transgender person from a future court taking a strict textual interpretation and annulling this ruling.

Too bad the court system can't create the equivalent of a bug report for legislation. If we had that then in this case the SCOTUS could have issued a legislative mandate to Congress requiring them to clarify or expand the definition of "sex" so that now-protected classes are protected from a further court ruling on what the actual text of the law says. It is the role of the court to interpret the laws, not make them.