Supreme Court Ruling Extends Title VII Protection to Gender Identity, Sexual Orientation

Jun 19, 2020

Supreme Court
In a 6-3 ruling on Monday, the U.S. Supreme Court ruled in Bostock v Clayton County, Georgia, that provisions in Title VII of the Civil Rights Act of 1964 prohibiting discrimination in the workplace based on sex must be extended to both gender identity and sexual orientation. The opinion was a surprise to many because sexual orientation and gender identity were not considered “sex” at the time that word was used by Congress.

Attempting to address that point, Justice Neil Gorsuch wrote, "An employer who fired 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. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. … But the limits of the drafters' imagination supply no reason to ignore the law's demands." Justice Gorsuch was joined in his opinion by Chief Justice John Roberts and the four liberal members of the Court.

In his dissent, Justice Samuel Alito dismissed the need to speculate on the evolution of language in addressing intent. He stated, “For the past 45 years, bills have been introduced in Congress to add ‘sexual orientation’ to the list, and in recent years, bills have included ‘gender identity’ as well. But to date, none has passed both Houses."
Title VII applies to most employers with 15 or more employees and although there is an exception in the law for certain religious-based situations, it remains to be seen how robust the courts will be in protecting religious rights when adverse to this new-found protection.

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