SCOTUS holds Title VII protections for sex extends to sexual orientation and sexual identity

A point of personal privilege … my legal practice for many years was concentrated in Title VII employment discrimination cases. I counseled hundreds of clients and potential clients on their legal rights.

For many years, whenever I counseled a potential client who was harassed or discriminated against at work on the basis of sexual orientation or sexual identity, I had to explain the cold hard facts of the state of the law. When Congress enacted the Civi Rights Act of 1964,  “sex” was included as a poison pill by an opponent trying to kill the bill. Congress never considered that it included sexual orientation or sexual identity, and this is how the federal courts had always ruled on the matter. The claimant could file a discrimination claim, but it was likely that the civil rights division would rule against them based upon a lack of jurisdiction.

It was not until 2015 that the EEOC determined that sexual orientation discrimination is discrimination “because of sex,” around the same time that the same-sex marriage cases percolating up through the federal courts culminated in the Supreme Court decision holding that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, in Obergefell v. Hodges (2015).

Because of Obergefell, federal appellate courts began holding that discrimination at work on the basis of sexual orientation or sexual identity is discrimination “because of sex” under Title VII. A conflict among the circuits led to today’s landmark decision, discussed below.

There have been many attempts to amend Title VII to include sexual orientation or sexual identity is discrimination “because of sex” under Title VII, without success because of Republican opposition in Congress.

There have been many attempts to amend the Arizona Civil Rights Act to include sexual orientation or sexual identity is discrimination “because of sex” under the ACRA. A bill has been submitted in the Arizona legislature every year since at least 1994, and to the best of my recollection, only once has a bill ever received a committee hearing, where it was defeated by Republicans.

After today’s landmark decision, discrimination based upon sexual orientation or sexual identity should be codified into law at the federal and state level with amendments to Title VII and the Arizona Civil Rights Act. There is no longer any basis for objection, as the Supreme Court has now declared it is the law of the land.

My thoughts today are with all those individuals I counseled over the years, recalling the pained expression of disappointment on their faces that they had no legal recourse. Today’s opinion comes years too late for them. Hopefully now “it gets better” for the future.

Turning to today’s opinion in Bostock v. Clayton County, Georgia (.pdf) (together with Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit): GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.  ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

From the introduction of the majority opinion by Justice Neil Gorsuch:

Sometimes small gestures can have unexpected conse­ quences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in signifi­ cance 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 ho­ mosexual 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 undistinguishable 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.

The Analysis (excerpts):

This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the Presi­dent. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the peo­ple’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.

With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by ex­amining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.

The only statutorily protected characteristic at issue in today’s cases is “sex” — and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gen­ der identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the par­ ties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.

Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it.

* * *

Accepting this point, too, for argument’s sake, the ques­tion becomes: What did “discriminate” mean in 1964? As it turns out, it meant then roughly what it means today: “To make a difference in treatment or favor (of one as com­pared with others).” Webster’s New International Diction­ary 745 (2d ed. 1954). To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated. See Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 59 (2006). In so­called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988). So, taken together, an employer who intentionally treats a person worse because of sex — such as by firing the person for actions or attributes it would tolerate in an individual of another sex — discrimi­nates against that person in violation of Title VII.

* * *

The statute answers [the] question directly. It tells us three times — including immediately after the words “dis­ criminate against” — that our focus should be on individu­als, not groups: 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, be­ cause of such individual’s . . . sex.” §2000e–2(a)(1) (emphasis added). And the meaning of “individual” was as uncontroversial in 1964 as it is today: “A particular being as distinguished from a class, species, or collection.” Web­ster’s New International Dictionary, at 1267.

* * *

From the ordinary public meaning of the statute’s lan­ guage at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it inten­tionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the em­ployer treated women as a group the same when compared to men as a group. If the 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. Title VII’s message is “simple but momentous”: An individual em­ployee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).

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 be­ cause it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

* * *

Put differently, the employer intentionally singles out an em­ployee to fire based in part on the employee’s sex, and the affected employee’s sex is a but­ for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the em­ployer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual em­ployee’s sex plays an unmistakable and impermissible role in the discharge decision.

* * *

When an employer fires an employee because she is homo­sexual or transgender, two causal factors may be in play — both the individual’s sex and something else (the sex to which the individual is attracted or with which the individ­ual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that in­dividual’s sex, the statute’s causation standard is met, and liability may attach.

* * *

[I]nten­tional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but­ for cause when an employer discriminates against homosex­ual or transgender employees, an employer who discrim­inates on these grounds inescapably intends to rely on sex in its decision making.

* * *

At bottom, these cases involve no more than the straight­ forward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in judgment).

Gorsuch then reviews prior court precedents and responds to arguments from both the employers and the dissenting justices. After a lengthy discussion:

Rather than suggesting that the statutory lan­guage bears some other meaning, the employers and dis­sents merely suggest that, because few in 1964 expected to­ day’s result, we should not dare to admit that it follows ineluctably from the statutory text. When a new applica­tion emerges that is both unexpected and important, they would seemingly have us merely point out the question, re­fer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.

That is exactly the sort of reasoning this Court has long rejected.

* * *

If anything, the employers’ new framing may only add new problems. The employers assert that “no one” in 1964 or for some time after would have anticipated today’s result. But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII com­plaints, so at least some people foresaw this potential appli­cation.

* * *

The “difficult[y]” may owe something to the initial proponent of the sex discrimination rule in Title VII, Representative Howard Smith. On some accounts, the congressman may have wanted (or at least was indifferent to the possibility of) broad language with wide­ ranging effect. Not neces­sarily because he was interested in rooting out sex discrim­ination in all its forms, but because he may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poi­son pill. … Whatever his reasons, thanks to the broad language Representative Smith introduced, many, maybe most, ap­plications of Title VII’s sex provision were “unanticipated” at the time of the law’s adoption. In fact, many now­ obvious applications met with heated opposition early on, even among those tasked with enforcing the law. …Over time, though, the breadth of the statutory language proved too difficult to deny.

* * *

While to the modern eye each of these examples may seem “plainly [to] constitut[e] discrimination because of biological sex,” post, at 38 (ALITO, J., dissenting), all were hotly contested for years following Title VII’s en­ actment. And as with the discrimination we consider today, many federal judges long accepted interpretations of Title VII that excluded these situations. … Would the employers have us undo every one of these unexpected applications too?

The weighty implications of the employers’ argument from expectations also reveal why they cannot hide behind the no ­elephants ­in­ mouse holes canon. That canon recog­nizes that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provi­sions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). But it has no relevance here. We can’t deny that today’s holding — that employers are prohib­ited from firing employees on the basis of homosexuality or transgender status — is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legisla­tion. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices — to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but­ for cause of the plaintiff ’s injuries — virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.

* * *

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex­segregated bathrooms, locker rooms, and dress codes will prove unsustainable af­ter our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” … Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these. … [And] how these doctrines protecting religious liberty inter­ act with Title VII are questions for future cases too.

* * *

Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those inten­tions, the bill became law. Since then, Title VII’s effects have unfolded with far­ reaching consequences, some likely beyond what many in Congress or elsewhere expected.

But none of this helps decide today’s cases. Ours is a so­ciety of written laws. 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 be­ ing gay or transgender defies the law.

“It is so ordered.”

Postscript:

On Friday, the Trump Administration released a set of guidelines dictating that discrimination against L.G.B.T. people in health care is not forbidden. The Trump Administration’s Hateful Message on Health Care for Transgender Americans. It was the fourth anniversary of the Pulse massacre, when forty-nine people were murdered in a gay night club in Orlando, Florida.

The timing is conspicuous. The new document reverses a rule, put in place by the Obama Administration, in 2016, that banned health-care providers from discriminating on the basis of gender identity or whether a patient had sought an abortion. The Obama-era rule was immediately challenged in court and still hasn’t taken effect, so the new rule serves only to put an end to that particular legal battle—and to draw attention to the issue. The new document claims that the Department of Health and Human Services lacked the authority to try to implement the old rule in the first place.

If the Supreme Court, in its forthcoming decision, rules that discrimination on the basis of sexual orientation or gender identity, or both, constitutes discrimination on the basis of sex, which is banned by Title VII, then the three-hundred-page document published, on Friday, by Health and Human Services will be rendered legally irrelevant: the discrimination it encourages will be banned. That the Administration decided to speak now suggests that it was rushing to raise its voice in favor of discrimination before the Supreme Court either preëmpted or weakened the rhetorical impact of the rule. The H.H.S. document is a statement not of policy but of hatred. Its message is amplified by its appearance on the anniversary of the largest mass murder of queer people in U.S. history. This was the day the Administration chose to try to inhibit L.G.B.T. people’s access to health care—in the middle of a deadly pandemic.

While this will assuredly be the final result, it is going to require the filing of a lawsuit(s) to stay the new guidelines, as the Supreme Court indicated in its decision today that issues arising from today’s opinion are for future cases.