Historic Title VII Supreme Court Decision Upholds Workplace Protections for LGBT People

by Jude Wetherell

On the morning of Monday, June 15, 2020, with a decisive 6-3 majority, the Supreme Court of the United States ruled definitively that workplace discrimination on the basis of sexual orientation and gender identity is an unlawful violation of Title VII of the Civil Rights Act of 1964.

“An employer who fires an individual merely for being gay or transgender defies the law,” wrote Justice Neil Gorusch, delivering the Court’s opinion. Justices Ginsburg, Kagan, Sotomayor, Breyer and Roberts joined him in supporting this ruling, while Alito, Thomas and Kavanaugh dissented.

That this historic victory for the LGBT community comes at a moment in history when millions have joined in protests for racial justice underlines the connection and influence that must be honored between the Civil Rights-era and contemporary struggles led by African Americans and countless movements that have followed. This includes the gay liberation movement, begun by transgender women of color at the Stonewall Inn in 1969.

For several decades, de facto workplace protections for LGBT people were established through a landmark 1986 Supreme Court case, Price Waterhouse vs. Hopkins. The ruling on this case created the precedent that workplace discrimination on the basis of sex, as enshrined in Title VII, encompasses discrimination against LGBT people. Yet in the Trump era, with the judiciary taking a conservative turn at all levels—and the increased prominence of LGBT people, especially transgender people, in all sectors of society—three decisive cases moving up from the lower courts seemed poised to determine the future of LGBT workplace protections.

The three cases in questions have hung in the balance for eight months, since the Supreme Court first held hearings for them in early October. At stake were a consolidated argument for Altitude Express vs. Zarga and Bostock vs. Clayton County, both of which concerned gay men who alleged they were fired due to their sexual orientations, as well as Harris Funeral Homes vs. EEOC, in which the plaintiff was a trans woman, Aimee Stephens, who was fired after socially transitioning and wearing female clothing on the job. Sadly, Stephens passed away in mid-May, before being able to witness the victory in which her long struggle resulted; the ACLU released a short statement Stephens prepared before her death in the event of a Title VII victory. (Donald Zarda, the plaintiff in the Altitude Express case, passed away in 2014; his family carried on the case on his behalf.)

The fact that these cases combined multiple classes of LGBT identity created both opportunity and risk. LGBT advocates understood that the court could potentially rule to expand workplace protections to the whole LGBT community. Alternatively, however, they knew it could have included sexual orientation but not gender identity (or vice versa). In the worst-case scenario, it could have ruled wholesale against expanding Title VII to people of all LGBT identities.

After the hearing last fall, LGBT legal advocates held out a surprising hope that Justice Gorusch, President Trump’s first Supreme Court appointee, might be a swing vote providing the four liberal justices with the needed majority to rule in favor of some expansion of LGBT workplace protection. Although Gorusch’s line of questioning in the initial hearing evinced his conservative views on issues such as bathroom bills, when it came to the ruling, his textualist interpretation of the Constitution prevailed in the favor of the LGBT community.

“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,” Gorusch wrote. “Sex plays a necessary and undistinguishable role in the decision, exactly what Title VII forbids.”

That a majority-conservative Supreme Court was able to deliver such a resounding victory for LGBT rights brings much-needed hope and energy to the movement. LGBT workplace discrimination is an insidious and pervasive issue. One-third of LGBT youth and young adults have reported experiencing discrimination in the workplace, according to the Trevor Project, which also notes that this harassment can have devastating mental health outcomes, including increased likelihood of suicide. Enshrined protection from the highest court in the land ensures dignity, safety and respect for all LGBT workers present and future.

Yet there’s still much work to be done. Last week, on the cusp of this historic victory, the Trump Administration rolled back Obama-era protections for trans and gender-nonconforming individuals seeking healthcare and health insurance. This would legally permit healthcare providers to deny treatment to individuals on the basis of gender identity. In the midst of a public health crisis—with people risking their lives to protest in the name of Black lives—and record unemployment, it is a cruel irony that LGBT people are protected at work but not at their doctor’s office or in the emergency room.

2020 marks fifty years of Gay Pride celebrations, the first of which were celebrated the year after Stonewall. The celebration this year will be unlike any before. And yet as people take to the streets to demand equality and dignity, it seems Pride is in fact returning to it roots: a movement led and informed by the legacies of people of color. With the Title VII win, let us remember the interconnectedness of all struggles for liberation, and let us be energized to continue the fight.