Supreme Court Ruling Is Right for the Times

Published in: September-October 2020 issue.


ON JUNE 15th, in the case of Bostock v. Clayton County, Georgia, the U.S. Supreme Court ruled in a 6-to-3 vote that discrimination based upon sexual orientation and gender identity is illegal. Unexpectedly, the liberal wing of the court with its four members was joined by Trump nominee Neil Gorsuch, who wrote the majority opinion at the behest of Chief Justice John Roberts, who likewise voted with the majority. Gorsuch began his opinion as follows:

In our time few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. … Today we 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 it would not have questioned in members of a different sex. Sex plays a necessary and undistinguishable role in the decision; exactly what Title VII forbids.

            Three discrimination cases made it to the high court. Two involved individuals who were fired when it was learned by their employer that they were gay. The third plaintiff had been fired for having transitioned from male to female while in the employ of the defendant. One case had been dismissed by a circuit court while the other two had gone in favor of the plaintiffs. The simplicity of the cases was noted by the court: “few facts were needed to appreciate the legal question in this case.” The gist of it involved the interpretation of Title VII of the 1964 Civil Rights Act, which formed the basis for the plaintiffs’ argument.

            The 1964 Civil Rights Act precludes discrimination based on race, color, religion, sex, or national origin. Consistent with his adherence to the doctrine of “textualism” whereby a statute is to be read literally, without regard to legislators’ intentions, Gorsuch insisted that the full implications of “sex” in the law be drawn out. The defining feature of a sexual orientation is the sex (in the sense of gender) to which someone is attracted, so the sex of the person so oriented should not be relevant to their employment. The transgender case is even more clear-cut: the basis for the firing was manifestly the sex of the employee, which the law forbids.

            The ruling has wider implications and possibly some unintended ones. Henceforth there can be no question as to whether Title VII pertains to LGBT people. The ruling states unambiguously that it does. Future cases brought before any court related to anti-LGBT discrimination can cite this ruling to argue that laws prohibiting unfair treatment based upon “sex” apply to LGBT people.

            This interpretation of Section VII actually goes back to President Obama’s Justice Department, which extended employment protection to LGBT federal workers based on this more expansive concept of “sex.” The Trump administration, predictably enough, rejected this interpretation and reversed the Obama policy. The ruling in Bostock has clarified what was a matter of political ideology and stated that all LGBT workers (not just federal employees) are expressly protected.

            The timing of the Supreme Court ruling is noteworthy, as people are taking to the streets to stand up against many of the same social injustices that were producing unrest in the 1960s: racism, police brutality, poverty, unequal justice. It seems only fitting that the promise of the great Civil Rights Act of 1964 is still working its legal magic all these decades later. And not to be overlooked: the Supreme Court reinforced a law that was designed to instill into the American consciousness that black lives matter, but also underscored that all Americans are entitled to equal treatment under the law regardless of their ethnicity, gender, or sexual orientation.


Joshua Casper is a freelance writer based in New York City.


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