A Necessary and Undisguisable Role”: LGBTQ Discrimination As Sex Discrimination

One could say it has been the decade of LGBTQ legal rights. No entity has thrown around more weight on this front than the Supreme Court. In 2013, the Court struck down the portion of the Defense of Marriage Act (DOMA) of 1996 that defined marriage as a “legal union between one man and one woman as husband and wife.” 1 In 2015, the Supreme Court made it clear same sex couples had a constitutionally protected right to marriage. 2 But then, in 2018, the LGBTQ community took a hit when the Court held that a baker was not required to make a wedding cake for same-sex marriages. 3

But then, on June 15 th of this year there was another big win. The federal circuits had split in recent years on whether Title VII of the Civil Rights Act of 1964, which bans employers with 15 or more employees from discriminating against workers based on sex, encompasses bias based on either sexual orientation or gender identity. 4 The 6-3 ruling in Bostock v. Clayton County, Georgia, answered: it does. This opinion was surprising, not only in its result, but in its support by conservative members of the bench, Chief Justice John Roberts and Justice Neal Gorsuch. In fact, Gorsuch authored the opinion.

Historical context may best serve us in understanding this opinion. Title VII prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. For our purpose we are focusing on discrimination “because of sex.” What exactly “because of sex” means was the subject of subsequent litigation and legislation. Congress amended Title VII with the passage of the Pregnancy Discrimination Act of 1978, to make it clear that the “terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to . . . pregnancy, childbirth, or related medical conditions.” 5 In the same year, the Supreme Court explained that “because of sex” means “treatment of a person in a manner which, but for the person’s sex, would be different . . . .” 6

The scope of “because of sex” was broadened in 1989 in Price Waterhouse v. Hopkins, when the Court recognized sex stereotyping as a violation of Title VII. The Court held the meaning of “because of sex” goes beyond biological sex to reach gender, which is a social construct built around sex. 7 The plaintiff was denied partnership, and advised to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” if she wished to improve her chances to make partner. 8 The Court found this to be impermissible sex stereotyping because discrimination based on lack of adherence to societal expectations of a respective gender is discrimination “because of sex.” A man would not have been denied partnership for failing to wear make-up.

Fast forward to 2020. In three linked appeals, the Supreme Court was poised to answer the question whether “because of sex” includes sexual orientation and sexual identity. In each case, the employer allegedly fired the plaintiff for being gay or transgender. Gerald Bostock was fired by Clayton County Child Welfare Services Department for conduct “unbecoming” a county employee shortly after it was discovered he played in a gay softball league. Altitude Express fired Donald Zarda days after he expressed that he was gay. R. G. & G. R. Harris Funeral Homes fired Aimee Stephens (who had presented as male) after she notified them that she planned to transition to living and working as a woman. Each plaintiff sued, alleging sex discrimination under Title VII. The Eleventh Circuit dismissed Bostock’s claim as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Zarda and Stephens, respectively, to proceed.

In his opening paragraph, Justice Gorsuch framed the issue before the Court as, “whether an employer can fire someone simply for being homosexual or transgender.” 9 His answer was clear. “An employer who fires 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.” 10

So how does conservative Justice Gorsuch get to such a progressive conclusion? That would be courtesy of textualism, which all conservative members of the bench are stated adherents of. This legal theory asserts that laws should be interpreted only on the basis of a statute’s text and not on extratextual sources, including legislative history and speaker’s intent.

The Court was interpreting a statute passed in 1964. As such, the analysis was based on the “ordinary public meaning of its terms at the time of its enactment.” 11 Gorsuch first analyzed the term “sex,” and found the meaning to be “status as either male or female [as] determined by reproductive biology.” 12 It is important and interesting to note that Gorsuch ceded that Congress in 1964 most assuredly did not intend sex to include sexual orientation or sexual identity, but textualism counsels in favor of a focus on the plain and ordinary meaning of the text of the statute rather than Congress’ intent.

The more important analysis was what Title VII said about sex, specifically “because of.” Gorsuch found that “because of ” means and meant in 1964 “by reason of ” or “on account of.” As a result, the Court concluded that “in the language of the law, this means that Title VII’s ‘because of ’ test incorporates the ‘simple’ and ‘traditional’ standard of butfor causation.” 13 This in and of itself will have far reaching implications in clarifying causation in discrimination cases going forward.

“The ‘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.” 14

COVER STORY By: Bianca White

Student Services & Assessment Librarian Assistant Professor of Law Lincoln Memorial University Duncan School of Law

Accordingly, the Court ruled that “[s]o long as the plaintiff ’s sex was one but-for cause of [the employer’s] decision, that is enough to trigger” Title VII protection. Gorsuch noted Congress could have taken a more restrictive approach by utilizing the terms “solely” or “primarily because of,” but they did not. 15

Gorsuch also focused on the term “individually.” Title VII prohibits discrimination against “any individual . . . because of such individual’s . . . sex.” 16 This focus on individual protection over class protections is important because Congress chose not to protect only the class of women, but rather to protect “individuals” based upon a protected characteristic – here “sex.” Some of the more cerebral parsing of words is made easier to understand with Gorsuch’s examples. For instance,

[A]n 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. 17

The Court made it clear that if changing the employee’s sex leads to a different employment action, Title VII has been violated. “Title VII’s message is ‘simple but momentous.’ An individual employee’s sex is not relevant to the selection, evaluation, or compensation of employees.” 18 As a result, the Court concluded that “it is impossible to discriminate against an individual for being homosexual or transgender without discriminating against that individual based on sex.” 19 The opinion provides a plethora of examples to drive home the point that discrimination based on sexual orientation or identity is inextricably intertwined with the employee’s sex, because if they were the other biological sex the result would be different.

Accordingly, the Court affirmed the judgments of the Second and Sixth Circuits. The Court reversed the Eleventh Circuit’s judgment and remanded the matter for further proceedings consistent with it.

Not surprisingly, Justices Alito (joined by Thomas) and Kavanagh dissented with varying degrees of vociferousness. Justice Alito was more irate, accusing the majority of legislating, likening them to pirates and providing a litany of horrors that are certain to follow this decision. Justice Kavanagh took a more tempered approach. While asserting he was happy for the plaintiffs, he insisted that is was Congress’ place, not the Court’s, to include sexual orientation and identity as a protected class under Title VII.

The next stop for LGBTQ legal rights on this issue will most assuredly focus on attempts to have the exceptions swallow the rule. Most notably, in the vein of Hobby Lobby, 20 the Religious Freedom Restoration Act 21 is sure to serve as a defense for some employers to the application of Title VII based on sexual orientation and identity by asserting it is a violation of one’s deeply held religious belief to be forced to employ said class of people. Stay tuned…

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20 United States v. Windsor, 570 U.S. 744, 752 (2013). Obergefell v. Hodges, 576 U.S. 644 (2015). Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). Before Bostock, the Courts of Appeals were split on whether LGBT people were protected by the language of the statute. See Equal Emp’t Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (transgender employees protected), cert. granted, 139 S.Ct. 1599 (2019); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) (gay employees protected), cert. granted, 139 S.Ct. 1599 (2019); Bostock v. Clayton County, Ga., 723 Fed. App’x. 964 (11th Cir. 2018), reh’g en banc denied, 894 F.3d 1335 (11th Cir. 2018) (gay employees not protected), cert. granted, 139 S.Ct. 1599 (2019); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc) (gay employees protected). Pregnancy Sex Discrimination Act, prohibition., Pub. L. No. 95-555, 92 Stat. 2076 (1978). City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (quoting W. David Slawson, Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971)). 490 U.S. 228 (1989). Id. at 235. Bostock v. Clayton Cty., 140 S. Ct 1731, 1737 (2020). Id. Id. at 1738. Id. at 1739. Id. Id. Id. Id. at 1740 (quoting 42 U.S.C. § 2000e-2(a)(1) (2020)). Id. at 1741. Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion)). Id. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). 42 U.S.C. § 2000bb et seq.