The Supreme Court of the United States has ruled that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation or gender identity. The unexpected 6-3 decision by the court is considered a major win for LGBT advocates who feared the conservative majority on the court would rule the other way. However, the ruling itself is narrow and applies only to Title VII itself, and future battles likely wait for LGBT people seeking legal protections against discrimination.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, religion, creed, national origin, and sex. The primary issue in the case before the court, Bostock v. Clayton County, was whether it was prohibited to discriminate against someone because they are in a homosexual relationship or because they were transgender. The plaintiffs argued Title VII’s protections should extend to LGBT people based on a broad reading of the definition of discrimination based on “sex,” while the defendants argued for a more narrow reading that conformed with more traditional interpretations of the law.
Traditionally, the court has been reticent to expand protections beyond the specific scope of Title VII’s language, although there have been some notable (and, in this case, directly relevant) exceptions. For example, Title VII’s meaning has been expanded to include a prohibition on sexual harassment in the workplace, due to it being coercive against primarily (although not entirely) female employees. Crucially, it has also been expanded to include punishments against employees for failing to conform to gender norms.
It is this latter reasoning that proved to be the crux of the argument for expanding Title VII’s meaning to LGBT employees. The majority opinion, written by Justice Neil Gorsuch, argues that the textual meaning of Title VII prohibits punishment of any person for any activity that would be permissible if they were of the opposite sex. So, for example, if a man can date or marry a woman and retain their job, so can a woman. Likewise, if someone who is biologically male can identify themselves as a man and retain their job, so can someone who is biologically female. To do otherwise would be discriminatory on its face and thus illegal, according to the majority opinion.
The minority opinion in the case, however, strongly disagrees with the majority opinion, and points to the difficulty LGBT advocates might have in expanding these protections beyond Title VII. The minority opinion, authored by Justice Kavanaugh, points to the Congressional record of the debate behind the Civil Rights Act, and notes that issues of sexuality and gender identity never arose. As such, the opinion argues, it is unreasonable to impart these additional interpretations on the legislation that were never intended by its authors. The majority opinion rests on the pure textual interpretation of Title VII as a defense to this argument, but it makes it clear that a similar legalistic argument might not pass muster with other, differently worded laws.
