Can you be fired from your job for coming out as gay or transgender? Not anymore. In a landmark case, the Supreme Court has extended Title VII civil rights protections to LGBTQ employees nationwide. The opinion, written by Trump appointee, Justice Neal Gorsuch, surprised legal commentators and solidified gay and trans* workers’ right to be free from workplace discrimination because of their sexual orientation or gender identity.

A Queer-Friendly Ruling from a “Conservative” Supreme Court

June was pride month across the U.S. and around the world. It also lines up with the end of the Supreme Court’s yearly term. In recent years, that has meant that LGBTQ advocates have looked forward to June as a time for big decisions on gay rights coming down from the country’s highest court. However, the appointment of two conservative Supreme Court justices in recent years meant that this June brought more anxiety than anticipation.

Last October, the Supreme Court heard oral arguments on three consolidated cases involving sexual orientation and gender identity discrimination:

• Bostock v Clayton County, where a child welfare services coordinator was discriminated against based on sexual orientation and gender stereotyping
• Zarda v Altitude Express Inc, where a skydiving instructor was fired for revealing he was gay
• RG & GR Harris Funeral Homes Inc v EEOC, where a transgender woman was fired after informing her employer she would be presenting as a woman at work and complying with female dress codes

Following oral arguments, commentators found it hard to tell whether the Supreme Court would side with the LGBTQ employees, or find in favor of the employers. While the newly-appointed conservative justices had asked some questions tending to show their support for LGBTQ civil rights protections, those familiar with the Court warned that it is never wise to assume what will happen between oral argument and the release of a written decision. That is why the final opinion, written by Justice Neal Gorush and released on June 15, 2020, caught some by surprise.

Supreme Court Says Sexual Orientation and Gender Identity Discrimination are Necessarily “On the Basis of Sex”

The question before the court boiled down to whether sexual orientation and gender identity discrimination were forms of discrimination “on the basis of sex” under Title VII of the federal Civil Rights Act, or whether they were different forms of discrimination beyond what the legislature had intended to cover at the time it passed the law in 1964. The opinion said:

“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.”

The 33 page majority opinion was signed by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, making it a 6-3 decision. Justices Alito and Kavanaugh each filed dissenting opinions, and Justice Thomas joined with Justice Alito’s dissent.

Those who read the opinion closely may have been disappointed to see that it framed questions of sexual orientation and gender identity discrimination on the basis of sex, “referring only to biological distinctions between male and female.” Transgender advocates in particular often try to distance questions of gender identity and expression from the sometimes arbitrary assignments of sex made by doctors at the time of a child’s birth.

However, this language reflects Justice Gorush’s attempts to tie the opinion as closely as possible to the actual wording in the federal civil rights statute, which says it is “unlawful . . . for an employer . . .  to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s . . . sex.” The Court emphasized that Title VII complaints need only show that a person’s sex was a motivating factor in an employer’s decisionmaking.

“So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.”

The Court said this is an individual right, and that employers violate Title VII when they act against an individual because of that person’s sexual orientation or gender identity, even when the employer would treat all gay or transgender employees or applicants the same (by firing them or refusing to hire them).

What the Ruling Means for LGBTQ Employees

When the Supreme Court found that “homosexuality and transgender status are inextricably bound up with sex” it unlocked access to all of Title VII’s civil rights protections for LGBTQ employees. Workers across the nation who are fired because of who they love or their gender expression may now file complaints with the EEOC and have their cases heard in federal court. This has already been true in parts of the country, including New York where the state Human Rights Law explicitly includes sexual orientation and gender identity. However, in the 29 states without explicit state-level protections, queer and LGBT workers can now rest assured that their rights will be protected under federal law.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law, here in New York, and across the country. We know how to navigate the landscape of sexual orientation discrimination and gender identity discrimination. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.