The U.S. Supreme Court ruled this morning that existing federal laws prohibit employers from job discrimination on the basis of sexual orientation, a resounding win for LGBTQ advocates from the conservative-leaning bench.
Justice Neil Gorsuch, a President Donald Trump appointee, wrote the opinion with Justices John Roberts, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan concurring. Justices Samuel Alito wrote a dissent, in which Justice Clarence Thomas joined, and Justice Brett Kavanaugh wrote a separate dissent.
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Gorsuch writes. “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.”
He wrote that those who adopted the Civil Rights Act might not have anticipated this result, “but the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
Before this opinion, nearly every Southern state lacked comprehensive state-level nondiscrimination protections for LGBTQ people; notably, Virginia adopted LGBTQ-inclusive nondiscrimination protections just this month.
“Today is a historic day: The U.S. Supreme Court has recognized the fundamental equality of LGBTQ Americans, including the more than 5 million who live in Southern states,” said the Rev. Jasmine Beach-Ferrara, Executive Director of the Campaign for Southern Equality. “The ruling ensures a blanket of employment protections for LGBTQ people rather than the inadequate patchwork that has all but stopped at the borders of Southern states. For LGBTQ Southerners, the decision shows yet again that that no one should face discrimination because of who they are or who they love.”
Beach-Ferrara added that the decision comes at a time when millions of people are facing unemployment or reduced employment because of the COVID-19 pandemic. She said that as LGBTQ individuals venture back out to the job market, they are grateful for the high court’s relief.
“While we’re grateful for this step forward, we all must remain committed to this month’s deepened and long overdue conversation around racial injustice,” she added. “We lift up the reality that Southerners with multiple marginalized identities face multiple layers of oppression. Black LGBTQ Southerners, for example, not only confront employment discrimination but also police brutality, anti-Black racism, and disproportionate rates of living with HIV. As we celebrate today’s ruling, we must continue to push for dignity, respect, and justice for all LGBTQ people in every sphere of life.”
Equality North Carolina Executive Director Kendra R. Johnson described the opinion as a watershed moment for LGBTQ communities all across the nation.
“For decades, LGBTQ people have fought to secure basic protections from discrimination within every arena of their lives,” Johnson said. “The Court’s decision will directly impact millions of people across the country and allow them to both live authentically in the workplace and care for their families with respect and dignity.”
Even with the landmark ruling, though, there is still more work to be done for the LGBTQ community.
“HB 142 is still on the books in North Carolina,” Johnson said, of the “compromise” statute that replaced the discriminatory House Bill 2. “There are still shocking and critical gaps in our nondiscrimination laws, particularly in housing, public places, federal programs and more. LGBTQ people face harassment and mistreatment in their daily lives and black and brown LGBTQ trans people face even higher rates of discrimination and, oftentimes, violence.
“Recent data shows a majority of Americans across ideologies, age, and religious affiliation in all 50 states support passage of LGBTQ nondiscrimination protections to ensure all LGBTQ Americans can live with respect, dignity, and safety in all areas of life. With the Supreme Court leading the way, Congress must pass the Equality Act into law and the North Carolina General Assembly must immediately repeal House Bill 142 and pass the Equality for All Act into law.”
North Carolina Attorney General Josh Stein called the opinion a “wonderful” development.
“People, when they are hired or they are fired, it should be because of how well they do their job and not based on who they love, their sexuality or their gender identity,” he told NC Policy Watch during a radio interview. “In fact, every term I was in the legislature, I always introduced a bill on employment nondiscrimination by the state, and to see the Supreme Court with a clarion call, with a clear voice, say that people may not be discriminated against under federal law in their employment is wonderful. It is a wonderful day for America.”
In his dissent, Alito disagrees with Gorsuch’s textualist argument and states that the Civil Rights Act doesn’t go as far as protecting sexual orientation or gender identity.
“If ‘sex’ in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender,” Alito wrote. “How then does the Court claim to avoid that conclusion?”
Kavanaugh writes in his dissent that it is up to legislators to expand Title VII of the Civil Rights Act to prohibit discrimination on the basis of sexual orientation or gender identity, not the courts.
“In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views,” he wrote.
Gorsuch disagreed in his opinion for the court. He wrote that judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.
“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the opinion states. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Read the full opinion and dissents below.