Sexual Orientation and Gender Identity Are Federal Civil Rights Categories, U.S. Supreme Court Says

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A majority of the U.S. Supreme Court has found that a federal law preventing discrimination on the basis of biological sex also covers sexual orientation and gender identity even though it doesn’t mention those characteristics.

On a 6-3 vote – including reputed conservatives Chief Justice John Roberts and associate justice Neil Gorsuch – the court found that the federal Civil Rights Act of 1964 makes it illegal to fire an employee for being homosexual or transgender because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

“An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules,” Gorsuch wrote for the majority in Bostock v. Clayton County, issued Monday, June 15. “… The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule.”

The four liberals on the court – Justices Ruth Bader Ginsburg, Stephen Breyer, Elana Kagan, and Sonia Sotomayor – joined Gorsuch and Roberts.

Title VII of the federal Civil Rights Act of 1964 makes it illegal to discriminate in employment on the basis of race, color, religion, sex, or national origin.

The case involved two people fired for declaring that they were homosexuals and one fired for announcing a male-to-female gender identity switch.

Justice Samuel Alito wrote a sharply worded dissent calling the majority’s position “preposterous.”

Alito said it’s clear that “sex” refers to biological maleness and femaleness and that it doesn’t refer to sexual orientation or gender identity – neither of which appears in Title VII of the Civil Rights Act of 1964. As if to lampoon the majority opinion, Alito attached 11-plus pages of dictionary definitions of the word “sex” to illustrate his point.

“There is only one word for what the Court has done today:  legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive,” Alito wrote. “… A more brazen abuse of our authority to interpret statutes is hard to recall.”

Gorsuch took some pains in the majority opinion to argue that he was simply interpreting the plain meaning of the Civil Rights Act of 1964, making occasional references to Antonin Scalia (1936-2016), an influential conservative justice known for trying to confine legal rulings to the meaning of constitutions and statutes and the original intent of the framers who wrote them.

But Alito said Gorsuch’s attempt at following Scalia’s reasoning amounts to fraud.

“The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated –– the theory that courts should ‘update’ old statutes so that they better reflect the current values of society,” Alito wrote in his dissent, which was joined by Justice Clarence Thomas.

Justice Brett Kavanaugh – like Gorsuch, a Trump appointee to the high court – also joined the minority, but issued a more restrained dissent that did not attack his high school friend Gorsuch as sharply as Alito did.

“Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court,” Kavanaugh wrote.

While Kavanaugh said in the dissent he finds the argument for making it illegal to discriminate on the basis of sexual orientation or gender identity “very weighty,” he said it isn’t the federal Supreme Court’s role to do it. Instead, he said, the court is supposed to interpret the law.

“As written, Title VII does not prohibit employment discrimination because of sexual orientation,” Kavanaugh wrote.

Chiefly at issue in the case is what federal courts will do with it.

Gorsuch acknowledged that “The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination” — but he said such concerns “are questions for future cases, not these.”

The Human Rights Campaign, a homosexuality-and-gender-identity-affirming lobbying group, expressed approval of the decision but also said the organization is not satisfied.


The Catholic Action League characterized the ruling as “an absurdly dishonest decision, fabricated and invented, which contradicted the clear meaning and the original legislative intent of the 1964 Civil Rights Act.”

“What has happened is that in a decision untethered to the Constitution, and under the guise of interpreting a statute, the court has asserted its right to enact laws in the place of Congress. With this decision, the court has, as it did in Roe v. Wade, effectively claimed the right to function as a kind of paramount national legislature, which can be appealed to when the democratic process fails to produce the results desired by some interest group,” said C.J. Doyle, executive director of the Catholic Action League, in a written statement.

Doyle predicted challenges in the future to what is known as the “ministerial exception,” which legislatures sometimes use to shield religious groups from nondiscrimination statutes.

“This decision will have grave implications for religious freedom, and for the integrity and identity of religious institutions,” Doyle said in the statement. “It will be used to narrow and eventually eviscerate the ministerial exception, which guarantees the right of church affiliated entities to control their own hiring, unfettered by the government.”