Even after the Supreme Court ruled in 2015 that same-sex couples had a constitutional right to marry, gays and lesbians in many states could be wed one day and fired on the next because of their sexual orientation. The court rectified that lingering injustice Monday when it held that not only gay but also transgender employees are protected by a landmark federal law against discrimination.
The 6-3 decision is a monumental milestone in workplace equality. Although more than 20 states, including California, prohibit discrimination in the workplace on the basis of sexual orientation or gender identity, the justices’ decision will provide nationwide protection.
In an opinion by Justice Neil Gorsuch, the majority persuasively concluded that dismissing or refusing to hire employees because of their sexual orientation or transgender status amounts to “sex” discrimination prohibited by Title VII of the 1964 Civil Rights Act.
As Gorsuch put it: “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 offered the example of an employer with a male and a female employee, both attracted to men. “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.”
This is so, Gorsuch explained, even though the Congress that approved the Civil Rights Act probably didn’t have this sort of discrimination in mind any more than it did other unforeseen applications of the law.
The court’s ruling evokes one written in 1998 by the late Justice Antonin Scalia — like Gorsuch, a so-called textualist when it comes to interpreting statues — that held that Title VII outlawed sexual harassment against workers regardless of their sexual orientation.
Scalia admitted that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” That is what the court did in this case as well.
In a dissent from Monday’s ruling, Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, suggested that the majority was dishonoring Scalia’s legacy by updating an old statute to “better reflect the current values of society.”
Alito also pointed out, as did Justice Brett M. Kavanaugh in a separate dissent, that legislation explicitly outlawing discrimination on the basis of sexual orientation has been considered by Congress without yet being enacted into law. Gorsuch rightly said that didn’t matter. It remained the fact that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”
Because this decision is based on a statute, not the Constitution, Congress is free to overrule it by passing new legislation giving employers a green light to discriminate against gay and transgender workers. If lawmakers have any feel for what Alito called the “current values of society,” they won’t even think of doing so.