Today, June 15, 2020, the United States Supreme Court held that firing an individual for being gay or transgender is sex discrimination and therefore violates Title VII of the Civil Rights Act of 1964. The 6-3 opinion in Bostock v. Clayton County Georgia, which was written by Justice Neil Gorsuch, can be found here.

In addition to its historical significance, the case is an important development for employers and employees in Texas. The federal appeals courts had been split over whether sexual orientation and transgender discrimination fell within the scope of Title VII’s sex discrimination ban. The Fifth Circuit Court of Appeals, which decides federal appeals in Texas, had consistently ruled that Title VII does not prohibit sexual orientation or transgender discrimination. The Supreme Court’s opinion today overturns those Fifth Circuit decisions.

Employers should review their anti-discrimination policies and practices to ensure compliance with the law as interpreted by today’s Supreme Court decision.

More About the Opinion

In today’s Supreme Court opinion, Justice Gorsuch wrote for the 6-3 majority that the text of Title VII of the Civil Rights Act of 1964 makes clear that “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.”  Justice Gorsuch wrote that homosexuality and transgender status are “inextricably bound up with sex” not in some vague or esoteric way, but because to discriminate on the basis of homosexuality or transgender status “requires an employer to intentionally treat individual employees differently because of their sex.”

After evaluating the specific language and definitions of the words used in the law, Justice Gorsuch wrote that “a straightforward rule emerges”:

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred. Title VII’s message is simple but momentous: An individual employee’s sex is not relevant to the selection, evaluation, or compensation of employees. The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Addressing arguments that Congress and President Johnson did not intend this particular result when they adopted the law in 1964, Justice Gorsuch wrote:

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. 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.”

Justice Gorsuch also wrote:

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”