On June 15th, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ people from workplace discrimination. The ruling is significant, particularly for the transgender community, because it means that it is illegal to fire someone because of their sexual orientation, gender identity, and gender expression.
The ruling also has immense implications for all anti-discrimination laws that include sex as a protected class including Title IX and the Trump administration’s recently announced and controversial redefinition of sex in the Affordable Care Act (ACA) which excludes transgender people.
Who Voted and How
The ruling passed 6-3. In a surprising outcome, Justice Gorsuch, who is typically more conservative, and Justice Roberts, considered a swing vote, both joined with more liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
The Supreme Court ruling states that “the limits of the drafters’ [of the Civil Rights Act of 1964] imagination supply no reason to ignore the law’s demands.” From this statement we can expect a textualist interpretation of Title VII, which typically appeals to conservative justices.
The “But-for Causation” Test
During the oral arguments there was significant discussion on the definition of “sex,” especially regarding what it meant in the 1964 Civil Rights Act. Title VII “prohibits employers from taking certain actions ‘because of’ sex.” This means the test lands on “but-for causation,” i.e. “That form of causation is established whenever a particular outcome would not have happened “but-for” the purported cause.” The non-law translation? Title VII prohibits employers from firing employees if they their sex was one of the reasons for their termination. Gorsuch explains: “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” One last thing about a “but-for” test: it’s important to note that “but-for” does not mean “only.” There can be multiple causes of termination, but if sex is one of the “but-for” causes, Title VII prohibits that termination. Gorsuch explains this test through baseball, because what American doesn’t understand a good baseball example?
“Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing ‘because of sex’ if the employer would have tolerated the same allegiance in a male employee. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care.”
Gorsuch takes this a step further, writing, “Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.” Essentially this states that discrimination based on sex, sexual orientation, and gender identity is comparable to arson.
The majority utilizes the example of Hannah and Bob to make their point in the “but-for” test, and to illustrate that Title VII is an individual protection, not a protection for a class of people. “An employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.” Don’t forget Hannah and Bob, we’ll come back to them in a minute.
The court unequivocally states, “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The tests for sexual orientation and gender identity are as follows:
Sexual Orientation: “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.”
Gender Identity: “If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”
The majority then restate and highlight the inextricably intertwined nature of sex, sexual orientation, and gender identity: “Homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”
Remember Hannah and Bob? Gorsuch finishes up the argument by coming full circle. He writes, “An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women…just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.”
“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex.”
That’s it folks! There you have it. You cannot discriminate against people due to their sexual orientation or gender identity without discriminating against them in part because of sex. Every protection granted to the American people that makes it illegal to discriminate on the basis of sex applies to sexual orientation and gender identity as well.
I go into more detail on precedent and the majority’s deconstruction of the dissent in my Twitter thread.