Looking deeply into the Supreme Court’s LGBT opinion

Yesterday I wrote about the 6-3 decision by the US Supreme Court that ruled that discrimination against gay, lesbian, and transgender people in employment violated Title VII of the 1964 Civil Rights Act that says that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

This case was a consolidation of three separate cases. Gerald Bostock and Donald Zerda were both fired from their jobs when their employers learned that they were gay, and Aimee Stephens, who had presented as a male when she was hired, was fired from her job when she told her employer six years later that she planned to live and work full-time as a woman. The Eleventh Circuit Court of Appeals upheld Bostock’s firing but the Second Circuit in Zarda’s case and the Sixth Circuit in Stephens’ case said that the firings violated Title VII. Sadly, Zarda and Stephens have died since the cases were filed and thus were not able to savor their victory but their heirs who continued the cases can.

This is an undoubtedly momentous decision that I did not see coming and now I have had time to read the majority opinion as well as the two lengthy dissents. I am going to quote them extensively because there is a lot of interesting and important stuff in there that I think is very encouraging for LGBT rights. While this case specifically related to employment, one can see implications is many others areas where the LGBT community currently faces discrimination such as education and housing.

It should be noted that while the employees said that the word ‘sex’ meant more than anatomy and involved other issues including gender identity and sexual orientation, they did not base their case on that broader definition. In other words the issue of whether one’s sex is purely determined by biology or not was not part of the arguments presented by either side.

In his majority opinion, justice Neil Gorsuch made the point that the issue was whether each individual was fired for discriminatory reasons. In other words, it does not matter if an employer, as a matter of policy, fires both male and female homosexuals and both transmen and transwomen. Treating all of them equally does not make the firing of an individual member because of their belonging to any of those groups any less discriminatory. He also said that it was immaterial as to how the employers treated men and women as a class and whether they treated one class better than the other.

Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

All that is necessary to prove discrimination is for sex to be an essential factor in the firing (what is referred to as a ‘but for’ condition) and that it was immaterial as to whether other factors were also involved. In Gorsuch’s words, “In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”

The employers contended that Title VII only referred to sex and did not specify sexual orientation or gender presentation, but Gorsuch pointed out that the use of ‘sex’ as a factor did not involve just the sex of the individual but also necessarily involved their sexual orientation and gender presentation, and this is the major expansion embedded in the ruling.

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.

An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.

Gorsuch also rejected a hypothetical put forward by by the employers.

Aren’t these cases different, the employers ask, given that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex. The resulting applications would disclose which individuals are homosexual or transgender without revealing whether they also happen to be men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination?

No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.

The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex. By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.

Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically.

But that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep.

Gorsch also rejected the employers’ claim that the extension of Title VII to the LGBT community was unforeseen and unexpected and that the court should refer the issue back to Congress to include LGBT protections explicitly into Title VII.

Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group.

As Yeskey and today’s cases exemplify, applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected. But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.

He closes unambiguously.

Ours is a society of written laws. 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. 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.

One thing that was interesting was that even in the two dissenting opinions that argued that the majority’s extension of the sex protections of Title VII to include the LGBT community went beyond the intent of the wording of Title VII, there were resounding affirmations of the rights of the LGBT community.

Justices Alito and Thomas wrote:

The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.

And justice Kavanaugh wrote:

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, 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.

There was a nice touch in that Gorsuch referred to Aimee Stephens as ‘Ms. Stephens’, thus acknowledging her right to be addressed according to the gender she wished to be identified with.

The fact that conservatives are melting down over this ruling is a nice coda to this story.


  1. brucegee1962 says

    It seems too much to hope for that Gorsuch may move to a more moderate position as time goes by, but if he does, it will hardly be the first time — even in recent memory. The same thing happened to Kennedy and, to some extent, Roberts. The Court seems to have that effect on people.

  2. says

    Bruce, I wonder if some of the justices, once they’re on the court, realize if even unconsciously that they are leaving a legacy and strive harder to be fairer in their opinions rather than holding on desperately to their ideology.

  3. Matt G says

    Thomas benefited from every affirmative action program available to him. Once in a position of power, he sought to undermine them. He climbed the ladder of success and then pulled the ladder up after him. His ego and lack of self-awareness won’t allow him to be grateful for any assistance he received. He needs to feel that he accomplished everything on his own. He will never change.

  4. lanir says

    I’m left a bit uncertain by this. I’ll need to dig in and read it myself. Certainly it’s a big deal and I’m very glad it happened -- this ruling will translate into meaningful protections for several of my friends. That’s always good news! But I’m not so sure where this leaves anyone who’s bisexual. The tests mentioned… it seems like the logic might not apply the same way. So I’ll have to read the whole thing later and figure out whether this is a positive ruling for the LGT community only or if it really applies to all of LGBTQ*. Basically the quoted bits imply a test for liking males or females. Anything beyond that such as liking both might not pass muster on this test. Because whatever gender the person in question is, being attracted to more than one gender doesn’t appear to violate the tests they laid out because the bias can be applied equally regardless of gender.

    * I don’t use the term queer myself so I’m probably a bit out of date on how people use it to define themselves. If it means what I think it does (kink, I think?) then that sounds like it might run into similar issues to bisexuals.

  5. Mano Singham says


    As I read the opinion, bisexuals will be covered. This is because the ‘but for’ logic that Gorsuch used would still apply.

    Take for example a male who is bisexual. If that person is fired because of that, then it is clearly the attraction to men that triggered the firing. ‘But for’ that homosexual attraction, there would have been no firing.

    I also doubt that employers who can no longer fire lesbians, gays, and transgenders will think it worthwhile to try to fire just bisexuals and risk another lawsuit that they will likely lose. It just would not be worth it for them. This last point also likely covers all the other categories in the LGBTQ+ spectrum. It would be a very stupid employer who would try to fire those in the BQ+ part of the spectrum given that they comprise such a small number (I think) compared to those in the LGT categories.

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