Gay Pride, Gay Rights

Posted in: Civil Rights

Coronavirus may have forced the LGBT community to forego the parades that have come to mark Gay Pride Month, but the Supreme Court’s decision in Bostock v. Clayton County is more than a decent substitute. Putting an end to a forty-year dispute, the Court ruled 6-3 that Title VII’s ban on sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity.

In hindsight, perhaps what is most striking about this week’s ruling in Bostock is what an easy case it turned out to be—even for a dyed-in-the-wool conservative like Justice Neil Gorsuch, who wrote the majority opinion. The issue, whether discrimination on the basis of sexual orientation or gender identity is covered by a statute that bans discrimination on the basis of sex, has vexed the lower courts for decades and spawned countless pages of argument in academic journals. But for this conservative court, it turned out to be simple. Indeed, what most commentators expected to fracture the justices in a 5-4 split along ideological lines, with a narrow victory for the conservative justices, was in fact a 6-3 decision with both Justice Gorsuch and Chief Justice John Roberts in the majority. And the result, a ruling in favor of the plaintiffs, flowed straightforwardly from the most basic tools of statutory interpretation. In this column, we will consider the history, the ruling, and what it means for the future.

Three Lives, Three Harmful Decisions

The Supreme Court consolidated three cases, each raising a question about Title VII’s application to sexual orientation or gender identity discrimination. None of the three cases, however, turned on factual disputes. In each one, the decision turned on whether the conduct alleged was unlawful.

Gerald Bostock, a child welfare advocate for the county whose leadership led the county to national awards for its work, was fired after participating in a gay softball league for conduct “unbecoming” a county worker. The Eleventh Circuit ruled in Bostock v. Clayton County that even if, as he claimed, Bostock was fired for being gay, Title VII’s ban on sex discrimination did not apply to firing an employee for his sexual orientation.

Donald Zarda, a skydiving instructor, was fired after revealing to a client that he was gay (in order to alleviate the client’s worry that her boyfriend would be jealous of their close contact during a tandem jump). The Second Circuit ruled in Altitude Express, Inc. v. Zarda that if it was true that he was fired for being gay, this action would violate Title VII because it is impossible to separate sexual orientation discrimination from statute’s ban on sex discrimination.

Aimee Stephens presented as a man when first hired by a Michigan funeral home; she was fired when she disclosed that she was planned to “live and work full-time as a woman.” Her employer told her “this is not going to work out” when she revealed her plans. The Sixth Circuit, in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, allowed the plaintiff’s claim of sex discrimination to proceed to trial.

Each of these plaintiffs was a longstanding employee; each was fired shortly after disclosing homosexual or transgender status. By the time the Supreme Court ruled that each firing had been unlawful, only one survived. Zarda and Stephens both passed away during the course of the litigation, but their cases and the litigation survived them.

Different Decades, Different Courts, Different Views

The split among these three circuits over Title VII’s application to LGBT discrimination is representative of the divisions that have plagued the lower courts for over four decades. The question has been more or less the same throughout this long period of time: are sexual orientation and gender identity discrimination forms of sex discrimination?

Title VII of the Civil Rights Act of 1964 is the centerpiece of federal anti-discrimination law. It prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. (A 1978 amendment to Title VII provides that the term “sex” also includes “pregnancy, childbirth, and related medical conditions.”) Sexual orientation discrimination is not included on the list; neither is gender identity. But if they are forms of sex discrimination, then they are actionable. In other words, what’s at stake every time this question is litigated is whether an employer who is otherwise bound by Title VII can fire someone for being gay, lesbian, or transgender without consequences.

Claims for discrimination against gay and transgender employees first showed up in the lower courts in the 1970s. Early court decisions rejected them out of hand as attempts to bootstrap new protected classes into the statute by judicial usurpation when Congress never intended to include sexual orientation or transgender status in the 1964 civil rights legislation. The early rulings are noteworthy mostly for their lack of serious analysis. Perhaps the most well-known of these is the Ninth Circuit’s ruling in DeSantis v. Pacific Telephone & Telegraph (1979). These rulings tended to focus on lack of congressional intent, concluding that unless Congress intended to protect against sexual orientation or transgender discrimination, it could not be covered by the statute.

The scope of Title VII is important because there is no other wide-ranging source of protection for lesbian, gay, or transgender workers. Today, about half of states ban discrimination against members of those groups, but historically they did not, and much of the country remains without state or local laws barring discrimination against LGBT employees.

Although the early Title VII decisions uniformly rejected the claim that LGBT discrimination is a form of actionable sex discrimination, court views of sex discrimination evolved and broadened over time. Although Bostock is the Supreme Court’s first ruling on the question whether Title VII encompasses sexual orientation and transgender discrimination, its views of sex discrimination had also evolved over time.

Although Title VII’s language is clear—that an employer cannot make decisions on the basis of sex—the Supreme Court has faced many questions about what that really means. In a series of rulings, the Court settled on a broad understanding of sex discrimination. The Court held, for example, in Phillips v. Martin-Marietta Corp. (1971), that discrimination against a subset of one sex, such as a hiring ban on women with preschool age children, constituted unlawful sex discrimination. It also ruled in Los Angeles Dept. of Water and Power v. Manhart (1978), that discrimination on the basis of differences in average group life spans (women live longer than men, as a group) was unlawful. And in Meritor Savings Bank v. Vinson (1986), the Court held that sexual harassment was a form of intentional sex discrimination. These decisions were the product of the Court’s grappling with a hard question: What does it mean to discriminate on the basis of sex?

The Court continued its work on this topic in the celebrated case of Price Waterhouse v. Hopkins (1989), in which it held that sex stereotyping is a type of actionable sex discrimination. There, a woman was denied partnership in a large accounting firm despite an impressive record of bringing in clients because she did not walk, talk, or dress femininely enough. This, the Court held, is a type of sex discrimination—requiring a woman to conform to feminine standards for appearance and behavior. As Justice Brennan confidently asserted in a plurality opinion, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

It was hard to understand after Price Waterhouse how courts could conceive of sexual orientation and transgender discrimination as independent of biological sex. Ann Hopkins was told to act like a woman because she had been born a woman, and the Court said that was discriminatory. What is anti-gay or transgender bias if not an admonition that persons born male or female should conform to the gender presentation and sexual preference prescribed by societal expectations for members of their sex?

Some courts accepted this implication from the articulation of an anti-stereotyping principle, although they still tried to articulate limiting principles so that not all sexual orientation or transgender discrimination would per se violate Title VII. This led to a dizzying array of distinctions and some strange outcomes, e.g., that an effeminate gay man could sue for sex discrimination but a masculine gay man could not, and evidence of anti-gay bias reduced the chance of winning a case because it suggested something different than “gender stereotyping.” Other courts ignored the sex-stereotyping principle altogether, holding fast to the idea that these are completely different types of discrimination from sex discrimination.

But overall, the modern trend has favored recognition that sexual orientation and gender identity are forms of sex discrimination, plain and simple. Some courts followed the lead of the Equal Employment Opportunity Commission (EEOC), which decided in 2012 and 2015 (respectively, discussed here and here) that transgender discrimination and sexual orientation discrimination could not be carved out from Title VII’s protection from sex discrimination. The trend in the circuits has been to sign onto the EEOC’s reasoning (if not based on deference, then the courts’ own considered views) to read protection from anti-gay and anti-transgender bias into Title IX’s protection from sex discrimination. But this was not the uniform view by any means, as evidenced by the Eleventh Circuit’s countervailing decision in Bostock, one of the three cases taken up by the Supreme Court.

Simple Principle, Simple Conclusion

When the Supreme Court entered the fray, most commentators expected the Court to take the “conservative” view and hold that coverage of LGBT discrimination would reflect an expansion of Title VII that could only be undertaken by Congress. The Court took a conservative approach all right, but with a very different result. Far from a dynamic interpretation of the statute in which the meaning of “sex” shifts with the times, the only tools required to resolve these cases were good old textualism and fidelity to precedent.

The majority in Bostock assumed for the sake of argument that the employers were right when they argued that Title VII’s use of the term “sex” was intended to signify the “biological distinctions between male and female.” What, then, does it mean to discriminate because of, or on account of, biological sex?

The LGBT discrimination cases were never about the meaning of “sex” in the abstract, Justice Gorsuch explained, and require no new understanding of “sex” as anything other than the biological marker it has long been understood to signify. Rather, they are about the meaning of sex discrimination, and a law that by its terms forbids an employer from treating an employee differently because of that employee’s sex. Firing an employee because he is gay or because she is transgender violates that rule on its terms. In fact, Justice Gorsuch explained, such conduct by employers necessarily takes into account the employee’s sex and would not have occurred but for the employee’s sex.

Consider the case of a man fired for being gay. If that man had been a woman who was attracted to men or had a male partner, that employee would not have been fired. That is the definition of discrimination because of the employee’s sex. The same reasoning applies to a transgender woman, who was identified as male at birth, but who lives as a woman. If that employee’s sex had been designated female at birth, and the employee lived as a woman, that employee would not have been fired. In both cases, the employer’s conduct meets the very definition of discrimination because of the employee’s sex. As Justice Gorsuch explained in the opinion, the Court has interpreted Title VII to require but-for causation—and these examples meet that standard.

This reasoning led the Court to a simple question with a simple answer:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

But What About . . .

The Court rejected each of the defendants’ arguments in favor of a narrower reading of Title VII. Although the statute might have been interpreted differently at one time, any rule that would create an exception to this straightforward reading of the statute has long been foreclosed by precedent.

Defendants argued that the plaintiffs in these cases did not experience sex discrimination because neither all women nor all men were disadvantaged by the employment decisions. True, anti-gay and anti-transgender bias does not disadvantage all women or men, only those who are transgender or are not heterosexual. But the Court has long recognized that not all members of the plaintiff’s sex need be swept into the discriminatory practice for it to be prohibited. This was established in the Martin Marietta case, which recognized “sex-plus” discrimination when a policy singled out a subset of a protected class for disadvantageous treatment. The same principle applies when sexual orientation or gender identity is the additional factor: a gay man fired for being gay is still discriminated against because of his sex (for being a man who isn’t attracted to women), even if other men in the workplace are untouched by that discrimination.

Sex discrimination law might have required an overall group-based disadvantage of one sex in relation to the other to violate the law, but that too was rejected early on. In Manhart, the Court held that an employer violated Title VII by charging female employees higher pension premiums than male employees. As a group, the policy did not disadvantage women because they lived collectively longer and received a commensurate benefit in the longer pay-out period. But the Court saw the rule for what it was, discrimination against individual employees because of sex, since a female employee was charged more than if she had been male. The absence of group-based disadvantage did not somehow neutralize the sex discrimination. (This is one of the many mistakes made by the Fifth Circuit’s Judge Ho in a recent transgender discrimination case, discussed here.) Likewise, in the case against Martin Marietta, that the employer still employed more women than men in the relevant jobs did not neutralize the sex discrimination against mothers.

The same principle covers LGBT employees: even if anti-gay and anti-transgender discrimination does not harm women as a group more than men, or vice versa, individual employees are still being treated differently than if they were a different sex.

The likelihood that none of the employers in the Bostock set of cases saw themselves as being sexist or intended to discriminate based on sex is also irrelevant under the Court’s precedents. The intent that matters for this form of intentional discrimination (disparate treatment), Justice Gorsuch explained, is the intent to treat the employee differently because of that employee’s sex. That the employers in these cases acted with that intent follows inescapably from the logic of what it means to discriminate because an employee or gay or transgender: if the employee’s sex were different and all other factors the same, the employee would have been treated differently. That differential treatment is what matters, not any additional subjective mindset or animus.

Defendants also argued that Congress did not intend to protect against sexual orientation or gender identity discrimination when it enacted Title VII. All parties can agree that Congress likely did not have LGBT employees in mind when it passed Title VII. Yet in a 1998 opinion authored by Justice Gorsuch’s predecessor on the Court, Justice Scalia wrote that Title VII is not restricted to the expected applications of the enacting Congress. In that case, Oncale v. Sundowner Offshore Services, the Court ruled that the law applied to sexual harassment of men by men, where that harassment occurs because of the employee’s sex, even though Congress likely never anticipated that the law would protect men from sex discrimination, much less from sexual harassment by other men. It is the terms of the statute that matter, not the intentions of its authors, a principle Justice Gorsuch adhered to in deciding these cases.

Defendants also suggested that Congress’s failure to pass the Employment Non-Discrimination Act or the Equality Act—bills that would have amended Title VII to protect expressly against sexual orientation and gender identity discrimination and which have been introduced in virtually every Congress since 1974—confirms that Congress did not intend this result. But post-enactment legislative history, long disfavored by conservative justices, did not muddy the issue. That Congress has long pondered, yet failed to enact, amendments to Title VII or new legislation expressly prohibiting discrimination based on sexual orientation and gender identity is of no matter. Congress may act or not act for myriad reasons (including that perhaps some members believe it to be already protected), but that inaction has no bearing on the meaning of the text that Congress did enact into law.

Finally, defendants argued that an employment decision is not actionable unless discrimination is its sole or primary cause. But neither the statute’s text nor the Court’s precedents have ever been understood to require the employee’s sex to be the sole or primary cause of the discrimination. In Manhart, it was the employee’s sex plus women’s greater longevity. In the Martin Marietta discrimination, it was the employee’s sex combined with parenting young children. In Oncale, not all men were harassed on the oil rig; some men were the harassers, who brutally and in sexually explicit fashion picked on Joseph Oncale based on their perceptions of his insufficient manliness. Congress amended the statute in 1991 to make clear that a violation of the statute occurs when sex (or race, or the other characteristics) is “a motivating factor for any employment practice, even though other factors also motivated the practice.” It is no matter that LGBT discrimination also involves the employee’s sexual orientation or gender identity in addition to the employee’s sex as the trigger for the discrimination.

The upshot of these precedents is that the logic of covering sexual orientation and transgender bias under Title VII comes down to one simple fact: if you change nothing about the employee but their sex (defined traditionally, as assigned sex at birth), the employee would have been treated differently. It’s that simple.

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