For those who were expecting it, as well as for those who were not, and have been surprised, the United States Supreme Court has delivered a thunderbolt decision protecting for the first time ever employees’ workplace rights against discrimination on the basis of their sexual identity or orientation.
In an expansive, activist interpretation of the word “sex” in the 1964 federal Civil Rights Act — reminiscent of the constitutional “right of privacy” discovered by an earlier court in the abortion case Roe v. Wade in 1973 — the Court expanded employee rights available under the statute in the private setor. It decided by a vote of 6-3 that employment discrimination against women on the basis of “sex” also extends to protect employees in the LGBTQ community — lesbians, gays, bisexuals, transgenders, and queers or questioning. An estimated 7-million persons in the United States self-identify in those categories.
The 1964 federal statute, first proposed by President John F. Kennedy but signed into law after Kennedy’s murder by President Lyndon B. Johnson, outlaws employment discrimination based on race, color, religion, sex, or national origin. In the previous century the United States Supreme Court had ruled in the Civil Rights Cases of 1883 that the Civil Rights Act of 1875, which had prohibited racial discrimination in hotels, trains, and other public places, was unconstitutional.
“Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII,” the Court announced on June 15 in a 33-page majority opinion written by President Trump’s conservative appointee, Neil Gorsuch. The President’s other conservative appointee, Chief Justice John Roberts, also voted in favor of providing sexual orientation or identity rights against employment discrimination. The two were joined by the Court’s four liberal justices, Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Justices Samuel Alito, Brett Kavanaugh (also a Trump appointee), and Clarence Thomas disagreed from the decision, and both Alito (107 pages, including exhibits) and Kavanaugh (28 pages) wrote separate dissenting opinions. Together the three separate opinions totaled 172 pages.
In his dissent Kavanaugh argued that it was the role of Congress, and not the Supreme Court, to amend Title VII to provide a more expansive interpretation of the word “sex.” “Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way,” he wrote. “We are judges, not Members of Congress, our role is not to make or amend the law.”
Nonetheless, Kavanaugh added: “[I]t 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.”
Alito noted that numerous bills had been introduced in Congress over the past 45 years that would have specifically added sexual orientation and gender identity to protections under Title VII, “but to date, none has passed both Houses,” he wrote.
The decision, Bostock v. Clayton, County, Georgia, which was decided together with two other appeals involving similar workplace discrimination issues, is bound to be considered by history as a society-changing jurisprudential landmark much like Brown v. Board of Education, which abolished the racial segregation doctrine of “separate but equal” in 1954, is considered today. It represents a sharp and revolutionary break with precedent by the Supreme Court.
The Court overruled a lower court decision by the Atlanta-based Eleventh Circuit Court of Appeals (which covers Florida). The Eleventh Circuit had construed the word “sex” in the federal statute more strictly and decided that it was meant by the legislators to prohibit only discrimination against female employees. There is little doubt that the federal legislators who voted in favor of the 1964 law believed that the word “sex” meant to protect only female employees against workplace discrimination.
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” Justice Gorsuch acknowledged.
Just after the opinion was released, Carrie Severino of the conservative Judicial Crisis Network said of Gorsuch’s opinion: “This was not judging, this was legislating — a brute force attack on our constitutional system.”
Speaking at the White House, President Trump, whose administration had argued against the statutory expansion, called the decision “very powerful” and added: “They’ve ruled and we live with the decision … We live with the decision of the Supreme Court.”
U.S. Sen. Ted Cruz (R-Texas) disagreed with the Court. “The judicial rewriting of our laws short-circuited the legislative process and the authority of the electorate,” he said. “Six un-elected and unaccountable judges instead took it upon themselves to act as legislators, and that undermines our democratic process.” U.S. Sen. Mitt Romney (R-Utah) said no one should lose a job on the basis of sexual orientation, but he wished the “decision would have been reached by Congress rather than the court.”
While Congress could theoretically overrule the Court’s decision with new legislation, the chances of that happening are nil.