The Supreme Court announced today, in no uncertain terms, that discrimination against an employee because that employee is gay or transgender is discrimination on the basis of sex and, as such, a violation of Title VII of the Civil Rights Act of 1964.
While it would be difficult to overstate the import of today’s decision, the Court’s conclusion and rationale may strike a reader twenty years from now as obvious.
As we wrote about last October, before the Court were a trio of cases involving employees who were terminated for being gay or transgender. While each plaintiff advanced a number of arguments, common to all three cases was the argument that the Court ultimately recognized. Specifically, when an employer discriminates against an employee because that employee is gay or transgender, the employer is necessarily taking the employee’s gender into account.
As the Court explained, in a majority opinion penned by Justice Gorsuch, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” In the case of an employer who fires a gay man because he is gay, the trait the employer finds objectionable, the gay man’s attraction to men, is not objectionable in the case of a female employee. Similarly, in the case of an employer who fires a transgender employee for being transgender, the trait the employer finds objectionable, that the employee was assigned a different gender at birth, cannot be objectionable without taking into account the employee’s gender.
In a clear application of the above reasoning, and in response to an employer who might argue that it is possible to ask whether an applicant is gay or transgender without ever inquiring as to the applicant’s gender, the Court points out that it is impossible to even explain to applicants whether they should identify as gay or transgender without reference to their gender.
“By discriminating against homosexuals,” the Court makes crystal clear, “the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”
Again, while hindsight will likely prove today’s result self-evident, the reasoning embraced by this decision was still novel as recently as four years ago, when the EEOC, during the Obama administration, advanced it in a 2016 amicus brief.