In today's historic 6-3 Supreme Court decision, LGBTQ people across the U.S. came one step closer to full equality when justices ruled that workplace sex discrimination protections extend to sexual orientation and gender identity. The majority's 33-page opinion consolidates the answer to three cases in one, Bostock v. Clayton County, that asserted that the definition of "sex" in Title VII of the Civil Rights Act of 1964 could extend to LGBTQ people.
What is perhaps most surprising about the opinion is that it was penned by conservative justice and Trump-appointee Neil Gorsuch. A staunch "textualist," Gorsuch holds the view that when interpreting the law, justices should interpret legislation exactly as the statute says without considering the original author's intention.
"Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. 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," he wrote in his opinion. "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."
Earlier in the opinion, he summarized his point with a workplace example.
"Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman," Gorsuch wrote. "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."
He was joined in his majority opinion by conservative Chief Justice John Roberts alongside the Court's four liberal justices.
Michigan's Impact
One of the other two cases that were vital in securing this opinion includes Michigan's R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. Here, plaintiff Aimee Stephens was fired after six years of steady employment when she came out as transgender to her former boss, Thomas Rost.
After her termination, Stephens filed a complaint with the U.S. Equal Employment Opportunity Commission and sued Rost. Though she initially lost her case, Stephens' team appealed, and a federal judge at the 6th Circuit Court of Appeals ruled that the funeral home engaged in sex discrimination against Stephens when they fired her. Today, the Supreme Court's ruling served to reinforce that decision.
"There are no words to describe what I'm feeling at this present moment, and I just—I cannot thank the people enough that worked so hard on this case to get us where we got to," said Donna Stephens, Aimee's wife. "I know the last seven years of Aimee's life, she rose as a leader who fought against discrimination against transgender people. And I'm so grateful for this victory to honor the legacy of Aimee and to ensure people are treated fairly regardless of their sexual orientation or gender identity."
Aimee Stephens died last month at 59 due to complications related to kidney disease. Jay Kaplan is the ACLU of Michigan's LGBT Project staff attorney, and he worked directly with Stephens on this case. He said that as "monumental" as the outcome is, "it's tempered with the bittersweet knowledge that Aimee's not here."
"And her one wish was that she would live long enough to read this opinion, so I'm very sad, very sad that she's not here," Kaplan said. "It's a wonderful opinion. The majority pretty much agreed with what we'd argued in our brief, and it's a very strong opinion and it can help and save the lives and make a better life for so many LGBT people. I'm thinking a lot about Aimee today."
Along with dozens of other local politicians and groups, Michigan's Gov. Gretchen Whitmer released a statement expressing her support for the Supreme Court ruling, mentioning Stephens by name.
"Today, in a landmark ruling, the Supreme Court confirmed what we already know – that nobody deserves to lose their job because of who they are or how they identify," Whitmer said. "This is good news for the countless LGBTQ+ Michiganders who have been fighting for equality for decades, and would not have been possible if not for one of the plaintiffs, Aimee Stephens, a brave Michigander who fought for transgender rights until the day she died. There is still more work to do. We must continue fighting to expand the Elliott-Larsen Civil Rights Act to protect members of the LGBTQ+ community and make Michigan a state where more people want to move to for opportunity. In honor of Aimee, take today to celebrate this victory, and tomorrow, let's continue fighting to ensure equality for all Michiganders."
Explicit Terms
Deputy Director for Transgender Justice with the ACLU's LGBT & HIV Project Chase Strangio called the decision an "incredible moment and victory," especially considering its timing.
"And this is really is a rebuke to the Trump administration that has attempted to undermine protections for LGBTQ people through federal agency action since January of 2016," Strangio said. "… All the way up to Friday … when Health and Human Services issued a sweeping 340-page rule attacking trans people, particularly trying to undermine our health care protections. All of that was premised on interpretations of sex under federal law that the Supreme Court just rejected."
James Esseks is the Director of the ACLU's LGBT & HIV Project. He joined Strangio in his praise of the decision, but he cautioned those celebrating to remember that there is still much more work to be done. Specifically, he mentioned "gaps" in federal protections that don't extend to uniform LGBTQ rights in public accommodations — businesses available to the public — and in the recipience of federal funding. He said that The Equality Act, which would extend the nation's Civil Rights Act to explicitly include the terms "sexual orientation" and "gender identity," is the ideal way to fully ensure protections for LGBTQ people across the U.S.
"The Equality Act would fill both of those gaps protecting all women as well as LGBTQ people, and that's something that we think is an essential next step. It should happen right away in order to fully protect LGBTQ people in the civil rights context," Esseks said. "That is a bill pending in Congress. It passed the House of Representatives about a year ago and has been stalled in the Senate by the leadership in the Senate and we call for them to release it and get it to a vote."
Kaplan agreed.
"What's so important, though, is that we not just rest on our laurels and the media doesn't just decide that everything's taken care of," he said. "Our next step is we need to have those explicit civil rights protections."
