The ruling is a defeat for the Trump administration. During oral arguments last fall, Solicitor General Noel Francisco said, “Sex means whether you’re male or female, not whether you’re gay or straight.”
A reported 21 states already had laws on the books prohibiting such discrimination.
The landmark ruling that brings an expanded meaning to the phrase “on the basis of sex” that appear in the nondiscrimination provisions of the Civil Rights Act of 1964, is the court’s latest foray into the culturally contentious realm of sex and sex roles. In 2015, the court gave same-sex couples the right to marry in the 5–4 decision of Obergefell v. Hodges.
A lack of linguistic clarity has clouded legal issues in recent years as the concepts of sex and sexual identity or gender have become difficult to separate. Despite the distinct meanings of “sex” and “gender,” many institutions and individuals use “gender” to mean biological sex.
But the new ruling by the court embraces the concept of gender identity, which conservative critics say is a radical political invention that is not based on science.
“There has been a years-long battle by [the] Left to change federal law to bar discrimination based on sexual orientation and gender identity,” and the court has “undermined the rule of law … by legislating from the bench,” said Tom Fitton, president of conservative good-government group Judicial Watch.
“Congress should reaffirm the Constitution and combat this judicial power grab by reaffirming the original meaning of the Civil Rights Act. Only Congress can amend a law, not the Supreme Court. Today’s radical Supreme Court decision shows that the threat to the rule of law doesn’t only come from leftist rioters in the streets, but also from judicial activists on the bench,” he added.
Those on the other side of the question were overjoyed by the ruling, hailing its potential ability to spur change in society.
Left-leaning Rolling Stone magazine promptly hailed the decision as “even bigger than marriage equality,” adding, “It’s a game-changer that could have reverberations in everything from education to housing.”
In this new opinion, two conservative members of the court, Chief Justice John Roberts and Associate Justice Neil Gorsuch, joined the four liberals voting to expand the meaning of the word “sex” in the Civil Rights Act of 1964 to include sexual orientation and gender identity. Justice Samuel Alito wrote a dissenting opinion that Justice Clarence Thomas joined. Justice Brett Kavanaugh wrote his own dissenting opinion.
While Title VII of that federal statute from the Civil Rights Era prohibits employment discrimination based on race, color, religion, sex, and national origin, it doesn’t mention sexual orientation, preference, or identity.
Updating or Legislating?
Gorsuch wrote the majority opinion for the court.
In it, he acknowledged that “Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.”
“Ours is a society of written laws,” the justice continued.
“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.”
In his dissent, Kavanaugh accused the majority of arrogating legislative powers to themselves.
“Like many cases in this Court, this case boils down to one fundamental question: Who decides?” he wrote.
Kavanaugh quoted Alexander Hamilton, who wrote in Federalist 78 that federal judges exercise “neither Force nor Will, but merely judgment.”
“Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”
Alito wrote a scathing dissent, stating that the “arrogance” of the majority’s argument was “breathtaking.”
“If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time.
“The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.
“Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
The opinion issued by the court covered two cases involving homosexual employees—Bostock v. Clayton County, Georgia, and Altitude Express v. Zarda—as well as Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC).
Gerald Bostock, who worked as a child welfare services coordinator, claimed the county fired him on a false pretext after discovering he was gay. Donald Zarda, a skydiving instructor in New York, claimed he was fired from his job for being gay.
The third case involved former funeral home employee Aimee Stephens, who was born male and was formerly known as William Anthony Beasley Stephens.
When Stephens informed his employer that he planned to dress as a woman at work, the Christian owner of the business said he was free to do so in his private life, but not at work because presenting as a woman would upset mourners. The EEOC sued on Stephens’s behalf.
Both Zarda and Stephens died during the course of the litigation.