Commentary

Title VII and LGBTQ+ Rights

On Monday, June 15, 2020, the Supreme Court issued one of the most significant civil rights decisions in recent years.  In a 6-3 decision, the Court found that Title VII protects LGBTQ+ individuals from discrimination.  Justice Gorsuch summed up the reasoning of the Court in two sentences: “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.”

This case came before the Court as three consolidated cases: a Georgia child welfare advocate and a New York skydiving instructor were fired shortly after their employers discovered they were homosexual, and a Michigan woman was terminated from her job at a funeral home after revealing she was transgender.  In the Georgia case, the Eleventh Circuit followed the longstanding precedent that Title VII did not protect sexual orientation.  The New York case found the opposite, with the Second Circuit ruling that Title VII did afford such protection.  In the Michigan case, the Sixth Circuit found that Title VII protected transgender people.  The differences stem from statutory interpretation.  Many courts had long held that because Title VII did not explicitly enumerate sexual orientation, it did not protect that category.  The Second Circuit found that because someone’s sex is intertwined in their sexual orientation, it is protected by Title VII.  Protection of transgender people had been a little more forgiving after the Supreme Court decision in Price Waterhouse v. Hopkins, which found sex discrimination included discrimination for not meeting gender stereotypes.  The Sixth Circuit used this idea to form the basis of its opinion explicitly granting such protections to transgender employees.

In penning the decision, Justice Gorsuch relied on a common-sense analysis of the statutory language.  The Court found that Title VII prohibits discrimination “because of” sex and that “because of” is “simple…but for causation.”  And with Title VII, if sex is one of any number of “but fors,” then the action is prohibited.  In other words, if changing the employee’s sex would have changed the result, then the employer has violated Title VII.  This is the key idea that the Court used to reach its conclusion.  The example Justice Gorsuch used was if an employer had two employees attracted to men, one a man and the other a woman, and the employer fired the man because he was attracted to men, the employer made a decision based on the male employee’s sex.  Changing the employee’s sex in this example changes the outcome.  The same holds true for a transgender employee: an employee born male but identifying as female who is terminated is terminated because of her sex.

In sum, the Court held that when an employer discriminates against an employee who is homosexual or transgender, the employer has to be factoring in the employee’s sex along with something else (who the employee is attracted to, what gender the employee identifies, etc.).  Title VII prohibits sex being a factor in an employment decision. Thus, LGBTQ+ employees are protected.