In a much anticipated and landmark ruling today, the US Supreme Court held that under Title VII of the Civil Rights Act of 1964, employers may not discriminate against gay or transgender employees simply because they are gay or transgender. In Bostock v. Clayton County, Georgia, in an opinion written by Justice Neil Gorsuch, the court held by a vote of 6-3 that Title VII’s prohibition against making individual employment decisions “because of … sex,” necessarily includes lesbian, gay, and transgender individuals.
This opinion involved three cases consolidated into one opinion. In each case, the plaintiff was fired under circumstances that made it clear they were fired because they were gay or transgender. And different circuits of the Court of Appeals had reached different conclusions about whether that amounted to discrimination “because of … sex.”
The Court’s analysis was straightforward. The phrase “because of” means “by reason of” or “on account of,” which is the language of but-for causation. As the Court noted, there can be multiple but-for causes of a particular event. But-for causation means that:
a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.
The majority had no trouble concluding the plaintiff’s sex was one but-for causation in all three cases because gay and transgender status are “inextricably bound up with sex.” The Court explained, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The Court noted that where an employer fires an employee because she is gay or transgender, two factors are at play: “both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).” In a nutshell, an employer who discriminates against gay or transgender employees “is necessarily and intentionally appl[ying] sex-based rules.” That’s precisely what Title VII prohibits.
Justice Gorsuch offered some examples to illustrate the point. Take two employees, both of whom are attracted to men. Those employees are materially identical in all respects, except one is a man and one is a woman. If the employer fires the male employee because he is gay, the employer discriminates against him for traits or actions it tolerates in female employees. The employee’s sex is then a but-for cause of the termination. Similarly, if an employer fires a transgender employee because she no longer identifies with the sex assigned at her birth, that employee’s sex “plays an unmistakable and impermissible role in the discharge decision.”
The Court ultimately rejected the argument from both the employers and the dissents that nobody in 1964 would ever have expected the law to apply to gay or transgender individuals. As Justice Gorsuch explained, where the meaning of a statute is plain, that is the end of the analysis. While historical sources can be used to determine the meaning of a word or phrase back at the time the statute was passed, that isn’t what the dissents and the defendants are advocating. The dissents and the defendants instead wanted to override the plain meaning of the text with something beyond the text—the belief that this result was never intended by Congress. As Justice Gorsuch concluded, “[j]udges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”
While this case is a big win on the federal level, it’s worth noting that gay and transgender individuals in Washington were already explicitly protected by the Washington Law Against Discrimination (WLAD). The WLAD prohibits discrimination “because of” (among other things) sex and sexual orientation. RCW 49.60.010. Sex is defined to mean gender. RCW 49.60.040(25). Sexual orientation is defined as “heterosexuality, homosexuality, bisexuality, and gender expression or identity.” RCW 49.60.040(26). “Gender expression or identity” is in turn defined as “having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.” Id.
So in a sense, the Court’s opinion in Bostock won’t have much impact here. However, that doesn’t make the opinion any less important or noteworthy. We are living in a time where it can feel like there isn’t much to celebrate. Between the Covid-19 pandemic and the justified anger felt by the Black community, other marginalized communities, and their supporters at the systemic racism in our policing and justice system, there are a lot of big problems in our country. However, this case offers a rare moment to celebrate. So celebrate! And Happy Pride!