Historic Victory: Federal Law Protects Gay and Transgender Employees From Discrimination

On June 15, 2020, the Supreme Court of the United States issued its opinion in Bostock v. Clayton County, holding that an employer violates Title VII by discriminating against individuals for being LGBTQ.  The issue before the Court was whether the statute—which prohibits employment discrimination on the basis of sex—also prohibits discrimination on the basis of sexual orientation and gender identity.  Writing for the six-member majority, Justice Gorsuch explained that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual on the basis of sex.”

To reach this holding, the Court focused heavily on the statute’s text.  Title VII makes it “unlawful for an employer to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual, because of such individual’s sex.”  The parties conceded that “sex” was probably not intended to include sexual orientation or gender identity when the statute was passed in 1964.  But the probable intent of Congress in 1964 could not override the inevitable conclusions drawn from the statute’s text, the Court reasoned.  And because sex is inextricably bound up in sexual orientation and gender identity, discrimination on the basis of sex includes discrimination on the basis of those two traits, as well.

To illustrate the point as to sexual orientation, the Court considered two hypothetical employees who were both attracted to men.  The two employees differed only in their sex: one was a woman and one was a man.  If the employer fired the man because he was attracted to men, but not the woman, then the employer’s decision was based solely on the sex of the employee.  Likewise, if an employer fires a transgender woman employee but does not fire a cisgender (identifies with sex assigned at birth) woman employee for the same conduct, then the employer has treated them differently based on their sex assigned at birth.  Because an employment decision based on whether an employee is LGBTQ necessarily takes sex into account, it violates the statute on its face.

One of the employers’ counterarguments has been to point out that two variables are changed among the hypothetical employees—both sex and another factor (e.g. sexual orientation).  The employers argued that because these examples do not isolate sex as the determinative variable, they do not demonstrate that an employer has made a decision based on sex.  This argument did not persuade the Court, in part because Title VII contemplates multiple causes for an employment decision.  Because an employer violates Title VII when it intentionally fires an individual employee based in part on sex, it does not matter if other factors besides the plaintiff’s sex contributed to the decision.

The Bostock decision is enormously consequential for LGBTQ workers.  Prior to the decision, workers in 25 states had no recourse if they were fired for their sexual orientation or gender identity.  Now the Court has made clear that LGBTQ employees cannot be fired simply for being who they are.