By Tom Strode
WASHINGTON — The U.S. Supreme Court issued a watershed decision on gay and transgender rights today (June 15) by finding longstanding, non-discrimination protections in federal workplace law cover “sexual orientation” and “gender identity.”
The justices ruled in a 6-3 opinion the category “sex” in Title VII of the 1964 Civil Rights Act applies to homosexual and transgender employees. Chief Justice John Roberts and Associate Justice Neil Gorsuch — typically among the high court’s more conservative members — joined the four-member liberal wing in the majority. Associate Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented.
Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), and others disturbed by the decision expressed concerns about its impact on religious freedom and the meaning of words in laws.
The opinion “will have seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles, about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality,” Moore wrote.
The decision’s precedents “will mean that legislators actually won’t know what they are voting to pass — because words might change cultural meaning dramatically between the time of passage and some future court case,” he said.
John Bursch, vice president of appellate advocacy for Alliance Defending Freedom, said in a written release the inclusion of “sex” in civil rights laws was “to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities — the ones the law was designed to protect.”
Gay and transgender rights advocates celebrated the court’s decision.
Alphonso David, president of the Human Rights Campaign, described the opinion as “a landmark victory” for gay and transgender rights.
The Supreme Court’s ruling, however, “should hardly be surprising, given how much has changed culturally on the meanings of sex and sexuality,” Moore wrote. “That the ‘sexual revolution’ is supported here by both ‘conservatives’ and ‘progressives’ on the court should also be of little surprise to those who have watched developments in each of these ideological corners of American life.”
Writing for the majority, Gorsuch — one of two nominees by President Trump on the court — said, “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.”
Gorsuch acknowledged the congressional members who supported Title VII 56 years ago might not have expected the court’s ruling, but he said “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
An employer who fires a male employee for an attraction to men while tolerating it in a female worker is guilty of discrimination, Gorsuch said. The male worker’s “sex plays an unmistakable and impermissible role in the discharge decision,” he wrote.
Alito took issue with the court’s opinion in a sharp dissent, describing it as “legislation” instead of a “judicial opinion.”
“A more brazen abuse of our authority to interpret statutes is hard to recall,” Alito wrote. “The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.
“[T]he question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
Congress has repeatedly considered legislation to include civil rights protections for “sexual orientation” and “gender identity” but has failed to do so, Alito wrote. Last year, the House of Representatives passed the Equality Act, which would have protected both classifications, but the Senate has not acted on it.
In his opinion, Gorsuch said the majority is concerned about preserving the First Amendment’s protection of free exercise of religion for employers. He expressed hope the Religious Freedom Restoration Act (RFRA) — a 1993 federal law he said “operates as a kind of super statute” — may “supersede Title VII’s commands in appropriate cases.”
How such religious freedom rules relate to Title VII “are questions for future cases too,” Gorsuch acknowledged, however.
Southern Baptist lawyer Michael Whitehead said the high court “left open for future cases the questions about the rights of religious organizations and religious citizens to live out their faith and religious conscience in the public square. Disagreement about the meaning of being male or female should not be treated as malicious discrimination.”
Whitehead and his son Jonathan, lawyers in Kansas City, Mo., both wrote friend-of-the-court briefs, Michael for the Religious Freedom Institute and Jonathan for 24 state organizations of the Family Policy Council.
The ERLC’s Moore said the “legal and legislative challenges” produced by the ruling “are hardly the most important considerations. What is most important is for the church to see where a biblical vision of sexuality and family is out of step with the direction of American culture.”
Regarding sexuality, the church “has stood, and will stand” in its 2,000-year tradition grounded in the Bible, he wrote. For the church to do so, it “will mean teaching the next generation of Christians why [the distinctions between male and female] are good, and not endlessly elastic,” Moore said.
ERLC and other religious organizations signed onto friend-of-the-court briefs filed last year by the U.S. Conference of Catholic Bishops that contended “sex” in Title VII does not include either “sexual orientation” or “gender identity.”
The Supreme Court’s opinion came in three consolidated cases it heard in oral arguments in October 2019, two addressing “sexual orientation” and one regarding “gender identity.”
The “sexual orientation” cases involved employees in New York and Georgia who said they were fired because they are gay, while the “gender identity” case regarded a male employee at a Michigan funeral home who was fired after he told the owner he identified as a female and planned to begin wearing women’s clothing.
Two appeals courts — the Second Circuit in New York City and the Sixth Circuit in Cincinnati -– ruled in 2018 that gay and transgender individuals, respectively, are protected under the category of “sex” in federal employment law. The 11th Circuit in Atlanta, however, decided in the same year “sex” does not refer to “sexual orientation.” The Sixth Circuit ruled in favor of the employee in the “gender identity” case.
Though “sex” was long interpreted to refer only to whether a person is biologically male or female, the Justice Department under President Obama determined it also encompassed people who identify as gay or transgender. President Trump’s Justice Department has returned to the previous interpretation.
The opinion in the consolidated cases is titled Bostock v. Clayton County. B&R