In a landmark ruling, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act prohibits job discrimination on the basis of sexual orientation and transgender status, a major victory for advocates of gay rights; the transgender rights movement; and anyone who recognizes the invalidity of discrimination against any class of people on the basis of any personal trait.
By a vote of 6-3, the Court ruled that Title VII’s ban on discrimination “on the basis of sex” also covers sexual orientation and transgender status. It upheld rulings from lower courts that said sexual orientation discrimination was a form of sex discrimination.
President Donald Trump’s first Supreme Court appointee, Neil Gorsuch, wrote the opinion and was joined by Chief Justice John Roberts and the court’s four more liberal members to form a majority. It will likely come as a shocking blow to the administration which had just last week pulled back healthcare protections for transgender workers; that move is now in jeopardy. Justice Alito wrote a dissenting opinion which Justice Thomas joined and Justice Kavanaugh wrote his own dissent. Its a 172 page decision but a quick breakdown follows.
Majority Opinion – Justice Gorsuch, joined by Roberts, Breyer, Ginsburg, Kagan, and Sotomayor
I don’t usually like merely block-quoting parts of opinions but frankly Gorsuch’s introduction is just about all you need to read as it presents a concise argument of how clearly “sexual orientation” and “transgender” is covered under the terms “sex.”
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the
basis of race, color, religion, sex, or national origin. 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. Those who adopted the Civil Rights Act might not have
anticipated their work would lead to this particular result.
Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
I particularly like that line “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” It shows the difference between being a “strict constructionist” and being a “textualist.” The former means that you interpret the law solely in the context of the times it was written in while the latter says you rely on the text of the law to determine its meaning and scope and apply it to the issues it was meant to address but in the light of today’s knowledge and events.
Gorsuch starts out his analysis by engaging in classic statutory analysis. He parses out the words that make out the law and applies them to the current case. He notes that “because of” means “on account of ” or “by reason of” and that signifies under the law that “sex” need only be one factor behind why a person was terminated or discriminated against to qualify under the law. Congress, he notes, could have used “solely” but did not.
Next Gorsuch analyzes what the statute means by “discriminate against.” Relying on a Websters Dictionary definition from 1964 (when the law was passed) he gives the following definition: “To make a difference in treatment or favor of one as compared with others.” This means that “disparate treatment” short of actual firing or hiring is actionable under the law.
He then tackles Alito’s argument in his dissent (discussed below) that the Act is meant to prohibit broader discrimination against a group not individual, isolated cases by again looking at the statute. He notes that the statute uses the word “individual” three times in defining the prohibited conduct: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” Seems pretty clear but Gorsuch, to be safe goes back to Websters for a definition of an individual: “A particular being as distinguished from a class, species, or collection.”
Noting that previous SCOTUS decisions have stated that Title VII words and in tent a re “simple but momentous” he states:
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.
He cites three major, long-accepted, SCOTUS rulings where while “sex” was in and of itself not a factor, the person’s sex was inextricably tied to the factor. In Phillips v. Martin Marietta Corp., a company allegedly refused to hire women with young children, but did hire men with children the
same age. Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex. The company maintained, too,
that it hadn’t violated the law because, as a whole, it tended to favor hiring women over men. These submissions did not sway the Court, Gorsuch noted. “That an employer discriminates intentionally against an individual
only in part because of sex supplies no defense to Title VII. Nor does the fact an employer may happen to favor women as a class.”
In Los Angeles Dept. of Water and Power v. Manhart, a public employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that
women tend to live longer than men, and thus are likely to receive more from the pension fund over time. The defendant argued since they were merely using a proven statistical fact, they could not be found to be discriminating against women. Gorsuch cited this case also because the way SCOTUS refuted that statistical argument was by saying the law protected individuals and that therefore a woman may make this larger pension payments but die at the same age or earlier than the average man. The employer violated Title VII, SCOTUS ruled, because, when its policy worked exactly as planned, it could not “pass the simple test” asking whether an individual female employee would have been treated the
same regardless of her sex.
Finally Gorsuch cited Oncale v. Sundowner Offshore Services, Inc., where a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court held it was immaterial that members of the same sex as the victim committed the alleged discrimination. Nor did the
Court concern itself with whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination, like the plaintiff ’s conduct or personal attributes. “[A]ssuredly,” the case didn’t involve “the principal evil Congress was concerned with when it enacted Title VII.” But, the Court unanimously explained, it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Because the plaintiff alleged that the harassment would not have taken place but for his
sex—that is, the plaintiff would not have suffered similar treatment if he were female—a triable Title VII claim existed.
Having analyzed the statute piece by piece, and then putting all these cases together he goes through all of the defendants and dissenters positions, including that if you were to ask the plaintiffs why they were fired they would say because they were gay or transgender not “because of their sex.” I wont go through them all but will quickly discuss one main defense: that the statute does not say “sexual orientation” and sexual orientation” is different than “sex.” To that argument Gorsuch stated:
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.
In conclusion Gorsuch wrote: 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
Alito’s Dissent, joined by Thomas
Alito chose to ride the horse he came to town on : strict constructionist. He opens his dissent by stating:
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. . . The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” (Citing Scalia for that last phrase). 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.
Alito primarily focused on many past cases in lower Federal appeals courts that did not reach SCOTUS where sexual orientation was found not to be covered by “sex” and on the many times that trying to amend Title VII to include sexual orientation” and “gender identity” failed to pass in the House or the Senate (depending on which body the GOP controlled at the time). He also noted that there used to be many laws on a State and Federal level discriminating against homosexuality which were revoked or amended by future legislatures. And he argues that is the course that should have followed here.
To resolve the transgender issues, Alito discusses how “gender dysphoria” was seen in 1964 as a form of psychotic behavior so how could it have been covered by Title VII. But that’s not enough for him. He then has to list “potential consequences” of the Court’s decision.
He leads off with a fan favorite – this will allow transgender people to use the bathroom of their gender identity not their biological identity. He adds to that college dorm room assignments; insurers having to pay for gender reassignment surgery; women’s sports; requiring people especially teachers to use a person’s preferred pronoun or any number of new gender neutral pronouns. Justice Gorsuch dealt with all of these in short order by saying that the Court cannot be concerned with issues that have not come before it or the potential future application of its decisions – it will take those issues on as they come before the Court, but for now this decision only says that Title VII prohibits people from getting fired or being disparately treated at work because of their sexual orientation and gender identity.
Alito also turned to a section of the oral argument where, as he put it, a prominent professor of Constitutional Law who was arguing for the plaintiffs was asked if an employer had a policy that discriminated against the LGBTQ community but which was enacted in such a way as to eliminate the employer knowing what the sex of the person was, would that be discrimination under the law? The professor answered that maybe in that rare example sexual orientation would not be included in the term “sex.” He felt that this answer made the plaintiff’s case “collapse.”
But he was referring to Stanford Law School professor Pamela Karlan, whose oral argument was nothing short of brilliant that day. She knew that she needed to get conservative votes – at least one – to win for her clients. So she tried to frame it as a simple acknowledgement that as applied in these cases, discriminating on the basis of orientation was discriminating on the basis of sex. And she used the words of Scalia, in the Oncale case that Gorsuch relied upon:
The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.
So, since women who date and love men are not discriminated against and men who date and love men are, those men are being discriminated against on the basis of their sex.
Justice Kavanaugh’s Dissent
I won;t take up too much space talking about Justice Kavanaugh’s dissent. He basically makes the argument that this is legislation not opinion because it doesn’t use the “ordinary” meaning of words but the “literal” or contextual meaning of words. Once you step aside from the “ordinary” meaning of words you are making discretionary decision and re-defining words. So he lists several court cases where SCOTUS had to interpret whether a particular item or event was covered under existing language and where because Congress used a very specific word, the Court held it was not covered: “tomatoes” ordinary definition is vegetable though technically they are fruit; the word “vehicle” does not include “airplanes”; “beans” are not “seeds;” etc etc. Therefore, in common parlance, “sexual orientation” is not the same as “sex.” He adds a snarky comment, as he is wont to do:
It also rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just
a mistake of language and psychology, but also a mistake of history and sociology.
Of course, this misses Judge Gorsuch’s main point – He never said “sexual orientation” and “sex” are the same. He said that discriminating on these bases necessarily means you are discriminating based on sex – the common parlance of the word sex – and that is prohibited.
Kavanaugh like Alito relies on numerous prior decisions in lower Federal courts where it was held that sexual orientation was not covered by Title VII. Like Alito he notes how many times Congress tried to amend it to add those words, indicating that Congress thought it was a different characteristic that had to be included in order to be covered. He says this is nothing more than legislation by judicial decision and a wholesale violation of the separation of powers. He closes though with a statement that he applauds the result, its just the method of obtaining it that he opposes:
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. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.
Well he is certainly right about that. This is a long overdue victory for LGBTQ rights. It will have a tremendously powerful, positive impact on the community members’ daily lives, even more than the Obergfell decision which allowed same-sex marriage. It’s also a declaration and guarantee that the LGBTQ community are protected members of American society.
No doubt this decision will resonate in the upcoming election as the Dept of Justice did a 180 when it retracted its brief in support of the plaintiffs (done under the Obama administration) to file a brief in support of the defendants. Its recent decision to limit access to healthcare to the transgender population is likely now moot. The make-up of this decision bodes favorably for some other big, up and coming, SCOTUS decisions.
But like Gorsuch said, let’s not worry about the future right now. Let’s just accept and bask in this hard-fought decision in support of equality and common sense. Congratulations to the many, many advocates for this cause who never gave up on this battle and worked tirelessly to get it over the finish line. Today is a good day.
Se the full decision here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
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