In a stunning 6-3 decision June 15, the nation’s highest court ruled that sexual orientation and gender identity are included within the parameters of Title VII of the Civil Rights Act of 1964. The federal statute prohibits employment discrimination based on race, color, religion, sex, and national origin.
Writing for the majority, Justice Neil Gorsuch noted; “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.”
The significance of conservative Chief Justice John Roberts assigning Gorsuch the task of writing the narrow opinion and the two agreeing with the liberal minority of the court cannot be understated.
Justice Samuel Anthony Alito Jr. and Justice Clarence Thomas dissented, as did Justice Brett M. Kavanaugh, who wrote a separate opinion apparently to ding former President Obama.
“Seneca Falls was not Stonewall,” he wrote. “[T]o think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”
Alito’s dissent sounded like the late Justice Anton Scalia in his famous marriage-warning dissent in the 2003 Lawrence v. Texas ruling.
“What the Court has done today –– interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity –– is virtually certain to have far-reaching consequences,” he wrote.
Alito chastised his colleagues for taking “legislative” remedies, once the favorite conservative cry of “judicial activism.” Alito also took issue with the Court’s “imposition of an updated 2020 viewpoint” of the lawmakers’ intent, arguing that in 1964 “homosexuality” was still a criminal offense and that gender reassignment was largely an unknown construct.
“Courts must follow ordinary meaning, not literal meaning,” Alito wrote, adding that the ordinary meaning of “because of sex” does not cover discrimination based on sexual orientation or gender identity.
Some see this as Alito telegraphing his concern that the Court may not be so automatically approving of future LGBTQ and religious liberty cases.
Tony Perkins, the head of the anti-LGBTQ Family Research Council, labeled a ‘Hate Group’ by the Southern Poverty Law Center, shares that concern, while illustrating a profound misunderstanding of the purpose of the US Supreme Court.
“Allowing judges to rewrite the Civil Rights Act to add gender identity and sexual orientation as protected classes poses a grave threat to religious liberty,” Perkins wrote in a press release. “We’ve already witnessed in recent years how courts have used the redefinition of words as a battering ram to crush faith-based businesses and organizations.”
Most Californians were thrilled by the ruling, starting with San Francisco-based House Speaker Nancy Pelosi, who emphasized the need to pass and implement the Equality Act.
“The Trump Administration continues to advance an outrageous, hateful anti-LGBTQ agenda that risks the health and well-being of countless LGBTQ Americans and their families,” Pelosi said in a statement. “To finally and fully end LGBTQ discrimination, not just in the workplace, but in every place, last year, House Democrats passed the landmark Equality Act. Now, (Senate Majority) Leader McConnell must end his partisan obstruction and allow the Senate to vote on this critical legislation.”
Sen. Kamala D. Harris, on the short list to be presumptive Democratic Presidential candidate Joe Biden’s pick for vice president, also issued a statement.
“The Supreme Court’s ruling today sent a clear message to all Americans: our federal civil rights law protects LGBTQ workers and requires that they be treated with the dignity and respect every person deserves. The Court held that the Civil Rights Act prohibits discrimination in employment on the basis of sexual orientation and gender identity. Today’s decision will go a long way toward ensuring that LGBTQ people are protected in other critical areas, including education, health care, and housing,” Harris said.
“Our work is far from over, but as we celebrate Pride Month, today’s ruling is a step in the right direction in the fight for full equality for the LGBTQ community in all of its diversity, and in every facet of life,” she added.
Longtime LGBTQ ally Gov. Gavin Newsom touted California’s progressive credentials.
“Nobody should ever have to fear losing their job simply because of who they are or whom they love,” Newsom said in a statement. “Today’s Supreme Court decision rights this injustice and brings the country in line with what has long been California law, ensuring that LGBTQ persons across our nation enjoy core civil rights legal protection at work. While the fight for equality continues, this ruling is a significant victory for the LGBTQ community, civil rights, and against discrimination.”
Kris Hayashi, Executive Director of the Oakland-based Transgender Law Center, provided a larger context.
“This historic Supreme Court opinion comes in the middle of an unprecedented global health and economic crisis and an epidemic of police violence against Black people, a time during which our communities are holding so much grief and rage,” said Hayashi.
“Transgender people already face disproportionate discrimination in hiring and harassment at work, and now the Supreme Court has provided a measure of protection that will improve the lives of trans people Hayashi continued. “However, without a continued emphasis on the safety, well-being, and leadership of Black trans people, this victory will fall flat in perpetuating meaningful cultural change.”
“This is a watershed moment for our community. We must now build on this win by expanding protections to housing and to all aspects of life. The era of discrimination against the LGBTQ community must end, and it will end,” said State Sen. Scott Wiener, Chair of the California LGBT Legislative Caucus.
In addition to the Bostock v. Clayton County Title VII decision, the Court refused to hear the Trump Administration’s challenge to a California “sanctuary” law, leaving intact rules that prohibit law enforcement officials from aiding federal agents in taking custody of immigrants as they are released from jail.
“In California, we’ve seen the success that comes from building trust between law enforcement and our hard-working immigrant communities. The last thing we need to do is to erode that trust. Today, America is experiencing the pain and protest that occurs when trust is broken,” Attorney General Xavier Becerra in a statement. “That’s why this fight mattered so much. We’re protecting Californians’ right to decide how we do public safety in our state. The Trump Administration does not have the authority to commandeer state resources. We’re heartened by today’s Supreme Court decision.”
Out Los Angeles County Democratic Party Chair Mark J. Gonzalez was also pleased by SCOTUS’ decision to reject the Trump Administration’s challenge to SB54.
“Since Inauguration Day, Donald Trump, Jeff Sessions and Stephen Miller-like Republicans have made it their mission to take their bigoted ideals to terrorize our nation’s immigrants and divide our nation,” said Gonzalez.
“I applaud SCOTUS’ ruling rejecting the Trump Administration’s frivolous United States v California lawsuit against our State. Attorney General Becerra’s incredible defense of SB54 affirms that California, like all 49 other states, will continue to exercise its constitutional authority to decide how our law enforcement responds to immigrant rights and protections. While Jeff Sessions continues to campaign in Alabama on his decades of bigotry, the CAGOP, NRCC, Donald Trump and their party are not only going to have to prove their need for state and local cooperation with federal agents in court, but also reckon with their actions for years to come. Los Angeles Democrats will continue to stand on the side of all Americans, including immigrants, all across our county and our state.” –
Local elected officials reacted, too. “The Supreme Court decision that protects LGBT employees from discrimination at work is a milestone in our struggle for equality,” said openly gay Councilmember Mitch O’Farrell, who is also the first Native American to serve on the Los Angeles City Council. “Protecting employers from making hiring or firing decisions based on sex is a legal and moral victory for us all. This win was decades in the making, ignited by the Civil Rights movement and LGBT uprisings beginning in the 1950’s and 1960’s. We still have more to do, but let’s celebrate this incredible moment.”
The ruling, in fact, has inspired businesses, non-profits and philanthropists such as Ariadne Getty to do more.
“This landmark ruling by the U.S. Supreme Court in favor of the Title VII Civil Rights Acts is a major victory for the LGBTQ community and our country. I have dedicated my foundation to working towards LGBTQ protections and equal rights across the globe,” Ariadne Getty, president and executive director, The Ariadne Getty Foundation, tells the Los Angeles Blade. “While today we celebrate, tomorrow we must continue our fight for the freedom of all marginalized people.” – Karen Ocamb contributed to this story.