The Supreme Court

Workplace protections for LGBTQ employees are now the law of the land. 

In a historic ruling for LGBTQ rights, the U.S. Supreme Court ruled on Monday that companies cannot discriminate against employees on the basis of their sexual orientation and gender identity. 

The majority of the high court issued its ruling in a combination of three cases — two involving employees who argued they were fired for their sexual orientation, and one in which a trans woman had argued she was fired for her gender identity — finding such discrimination violated federal law. 

In a 6-3 decision, the court ruled that such discrimination violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace and housing over traits such as national origin, race and sex. Specifically, the cases asked the court to find that the definition of discrimination on the “basis of sex” under Title VII includes sexual orientation and gender identity. Title VII’s protections have also applied to protecting employees from pregnancy discrimination and workplace sexual harassment.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Justice Neil Gorsuch wrote in the opinion of the court. 

“The answer is clear. 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,” he wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The majority opinion was joined by Chief Justice John Roberts, and the court’s liberal wing comprising Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer. 

Dissenting from the ruling were Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh. Justice Alito essentially argued in his dissent that the court’s majority had created protections, rather than interpreting existing law simply as written. His argument reflects a common school of thought in conservative jurisprudence, where interpreting existing civil rights laws as offering expanded protections is often viewed as legislating from the bench.

Indeed, Justice Alito wrote in his dissent, joined by Justice Thomas, that “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.”

Notably, Justice Thomas’ confirmation hearings in 1991 were famously marked by lawyer Anita Hill’s allegations against him of workplace sexual harassment while she worked for him at the U.S. Department of Education and the U.S. Equal Employment Opportunity Commission. Justice Thomas has denied her allegations.

Kavanaugh’s own confirmation hearings in 2018 included searing testimony by Christine Blasey Ford accusing him of sexually assaulting her in 1982 when they were in high school. Kavanaugh denied the accusations during the hearings. 

In Monday’s ruling, the two cases that dealt with sexual orientation were Gerald Lynn Bostock v. Clayton County, Georgia and Altitude Express Inc., et al., Petitioners v. Melissa Zarda. The Zarda case involved a former skydiving instructor, Donald Zarda, who was gay, and who died in 2014 since filing his discrimination suit against a now defunct skydiving company in New York. He had claimed that Altitude had fired him on the basis of his sexual orientation after a customer complaint. 

The third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, involved a trans woman, Aimee Stephens, who had argued that she was fired in 2013 from her job as funeral director of a funeral home in Michigan after she came out as transgender. Stephens passed away in May. 

The nonprofit ACLU, which represented Stephens and Zarda in their cases, hailed the ruling as “a huge victory for LGBTQ equality,” in a statement Monday. 

“The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights,” James Esseks, director of the ACLU’s LGBTQ & HIV Project, said in the statement. “The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law.”

Aimee Stephens’ widow, Donna Stephens, also issued a statement. 

“For the last seven years of Aimee’s life, she rose as a leader who fought against discrimination against transgender people, starting when she was fired for coming out as a woman, despite her recent promotion at the time,” she said. “I am grateful for this victory to honor the legacy of Aimee, and to ensure people are treated fairly regardless of their sexual orientation or gender identity.”

Until Monday’s Supreme Court ruling, employment protections for LGBTQ workers depended on state and local protections.

Only some 22 states and D.C. had barred discrimination based on sexual orientation and gender identity, while a handful of states barred discrimination based on just sexual orientation, or only protected public employees against such forms of discrimination, according to the Human Rights Campaign, an LGBTQ civil rights advocacy group.