Supreme Court holds that LGBTQ discrimination violates federal law

The Supreme Court has ruled that discrimination against gays, lesbians, and transgender people is a form of gender discrimination prohibited under Title VII of the Civil Rights Act of 1964. The 6-3 ruling is notable in its bi-partisan majority, with two Republican-appointed Justices voting with the Court's four liberals.

The case is Bostock v. Clayton County, issued on June 15. This was three cases in one. The other two were Zarda v. Altitude Express out of the Second Circuit and R.G. v. Harris Funeral Home, from the Sixth Circuit. I was on the Zarda legal team along with Gregory Antollino, Esq., who initially filed the case, the ACLU, which joined the case at the Supreme Court, and law professors and veteran Supreme Court advocates Pamela Karlen, Esq. and David Cole, Esq., who argued for the plaintiffs at the Supreme Court in October 2020.

The case really presented a statutory construction dilemma. While Congress in enacting the 1964 law was probably not thinking of LGBTQ issues, plaintiffs advanced a logical basis why this form of discrimination is actually gender discrimination. If we apply the statute as it reads, and set aside legislative intent, then the plaintiffs win. If we consider what Congress had in mind 56 years ago, then plaintiffs probably lose. Writing for the majority, Justice Gorsuch interprets the statute in a purely "textualist" way, taking the language where he finds it and holding that, whatever Congress had intended way back yonder, discrimination on the basis of sexual orientation and transgender status is still gender discrimination.

How did the majority get there? Justice Gorsuch turns it into a simple inquiry, concluding, "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." Put another way, let's say John is dating Frank, and Linda is dating Tom. John and Linda both come into work late one day. Management is unhappy with their unprofessionalism, but only John is fired. And, by the way, management makes a homophobic comment to John on the day that John is fired. If John were Josephine, he would not have been fired. What made the difference in John's termination was his gender. A female who dated Frank would not have been fired. As the majority puts it, "If an employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee -- put differently, if changing the employee's sex would have yielded a different choice by the employer -- a statutory violation has occurred." Viewing it from this angle, Justice Gorsuch says, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." Gender is so closely aligned with sexual orientation that adverse decisions based on sexual preference or transgender status cannot be separated from the employee's gender.

The majority then addresses the employer's arguments. While the employers note that employees who were fired because of their sexual orientation normally do not tell people in casual conversation that they were fired because of their gender, that does not matter, Justice Gorsuch says. What matters is how that adverse decision holds up against the statutory language that prohibits gender discrimination.

The employers and (Justices in dissent) also note that prior attempts to change the statute to prohib this form of discrimination have failed. While Congress over the years has considered but rejected amendments to Title VII to explicitly prohibit discrimination based on sexual orientation, we cannot read too much into that, the majority says, because legislative amendments may fail for any number of reasons, and the whole exercise in divining why such amendments fail is too speculative, even "dangerous." What matters is what the statute says, and the Court is willing to accept that some statutory amendments failed even if they were not technically necessary because a plain reading of the statute already addressed the issue, which is happened in this case. While legislative intent may be relevant when the terms of a statute are ambiguous, that is not the case when the terms of the statute are clear. Since the six-Justice majority finds the terms of the statute are clear, it does not matter what Congress had in mind in 1964 when it made gender discrimination illegal. Consider sexual harassment. That phrase did not even exist in 1964. But in 1986, the Supreme Court said that such harassment is a form of gender discrimination regardless of what anyone thought when the statute was enacted.

Justices Alito, Thomas and Kavanaugh dissent. Justice Alito files a lengthy dissent, accusing the majority of arrogantly concluding that courts had gotten this issue wrong for 50 years before enlightened minds determined that this form of discrimination is actually gender discrimination. He also does not buy the argument that discrimination on the basis of sexual orientation necessarily takes into account the employee's gender. Justice Kavanaugh applauds the outcome of the majority's ruling, noting that gays and lesbians have persevered over the years against steep odds. But he also says the majority's ruling violated the separation of powers and that only Congress can change the meaning of "gender discrimination" under the statute.

This ruling is a landmark not only for LGBTQ rights but in the interpretation of statutes. The "textualist" interpretation method has commanded a clear majority on the Supreme Court. The Court also provides extensive language about proving discrimination under the "but for" theory, noting among other things that unlawful discrimination must have been the true cause of the termination, even if we have multiple "but for" causes for the adverse decision.

I saw the oral argument in this case, sitting with the legal team that represented Donald Zarda, Gerald Bostock and Aimee Stephens. I wrote about the argument at this link. It was an intense two hours. There is much speculation in watching oral argument. Which judges are asking the questions, what are the questions hinting at, who's with us and who's against us? The Justices try to play their cards close to their vest, which is why guessing the outcome of a case based on oral argument is tricky and sometimes a waste of mental resources. There was an overriding concern: five of the nine Justices are conservatives appointed by Republican presidents. But we also thought the arguments went well and our positions were logical. Justice Alito did tell the plaintiffs' side that he did not agree with them, and Justice Thomas did not ask any questions, as per his style. But when we all filed out of the Supreme Court building that day, there was a sense of optimism. Justice Gorsuch seemed to understand the plaintiff's position, and Chief Justice John Roberts did not smack around the plaintiffs' lawyers. We gathered on the concourse outside the building thinking we might actually win and that, at a minimum, we were still in the ball game. One issue that sticks out for me is that President Obama's choice to replace conservative icon Antonin Scalia was filibustered by the Republican Senate in 2016, allowing the current president to replace Scalia with another conservative, Neil Gorsuch. In the ends, at least for this case, that did not matter. It was Gorsuch who ultimately wrote the majority opinion.