Two of the three people at the heart of the landmark L.G.B.T.Q.-rights decision handed down by the Supreme Court on Monday did not live to know that they had won. The fight to protect L.G.B.T.Q. people from employment discrimination has been a long one—years for the individual plaintiffs, decades for the larger movement. Until Monday, such discrimination was legal in more than half the country’s states. Donald Trump’s Administration had argued that it should continue to be. But, in a 6–3 opinion written by the Trump appointee Neil Gorsuch, the Court ruled that discrimination on the basis of sexual orientation or transgender status is illegal under Title VII of the Civil Rights Act of 1964. It was the single biggest victory in the history of the L.G.B.T.Q.-rights movement.
The court heard arguments in the three cases—two originally brought by gay men and one brought by a transgender woman—on October 8th of last year. The stories, as Gorsuch writes in his opinion, are uncomplicated. “Few facts are needed to appreciate the legal question we face,” he wrote. “Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” The employers did not pretend that there were other grounds for termination; in all three cases, they argued that the dismissals were legal.
The Civil Rights Act forbids discrimination on the basis of sex. The employers in the Supreme Court cases argued—and the Trump Administration agreed—that sexual orientation and transgender status are distinct from sex. The lawyers for the dismissed employees argued that discrimination on the basis of sexual orientation constitutes discrimination on the basis of sex. Pamela Karlan, the Stanford law professor who argued on behalf of Donald Zarda and Gerald Lynn Bostock, the two gay men, proposed a hypothetical: “Two employees who come in, both of whom tell you they married their partner, Bill, last weekend. When you fire the male employee who married Bill, and you give the female employee who married Bill a couple of days off, so she can celebrate the joyous event, that’s discrimination because of sex.” In other words, she argued, the salient difference between a straight woman and a gay man, who share the trait of being attracted to men, is their sex. The Justices agreed. Gorsuch reiterated Karlan’s scenario in his opinion. “Consider, for example, an employer with two employees, both of whom are attracted to men,” he wrote. “The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” (Zarda died, in an accident, in 2014; Bostock attended the hearing in October.)
The case of Aimee Stephens, the transgender plaintiff, was perhaps simpler, because transgender status is more intuitively a matter of sex. David Cole, the A.C.L.U. lawyer who represented Stephens, argued that no matter how an employer reasons through the dismissal of a transgender employee—whether Stephens was fired, in essence, because in her boss’s mind she was the wrong kind of woman or the wrong kind of man—the decision comes down to a matter of sex. During the hearing, the Justices on both sides of the court’s liberal-conservative divide spent much of their time conjuring the spectre of transgender people using single-sex bathrooms, but in his opinion for the majority Gorsuch stuck to the substance of the case. “ Take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female,” he wrote. “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.” (Stephens, who was at the hearing, died in May, of complications from kidney failure.)
The Trump Administration had argued that Congress did not intend to protect L.G.B.T.Q. employees when it passed the Civil Rights Act fifty-six years ago. Gorsuch, an adamant textualist, disagreed. “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” he wrote. “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 Court’s decision is by far the most consequential in the decades-long history of the American L.G.B.T.Q. movement. Earlier victories included the adoption of anti-discrimination laws by states and the 2013 and 2015 Supreme Court decisions on same-sex marriage. But, although not everyone gets married, or wants to, most American adults work. The ruling also probably renders moot the Administration’s hateful rule, released on Friday, that encourages discrimination against transgender people in health care. In an even bigger rebuke to Trump, the President’s ban on transgender people in the military, which is still being litigated, will be harder for the Administration to defend.
On Twitter, Carrie Severino—the president of the conservative Judicial Crisis Network, which backed Gorsuch’s candidacy for the Supreme Court—expressed outrage over the decision, calling it “the hijacking of textualism.” Glee erupted in the comments, which advised Severino to “cry more” and offered “thoughts and prayers.” It had been a while since conservatives had bemoaned an L.G.B.T.Q. victory, and many of us had feared it wouldn’t happen again.
