Whether Title VII’s Prohibition of Sex-Based Discrimination Includes Sexual Orientation and Transgender Status
The United States Supreme Court held that terminating employment based on sexual orientation or transgender status constitutes unlawful sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964.
On June 15th, 2020, the United States Supreme Court held that terminating employment based on sexual orientation or transgender status constitutes unlawful sex-based discrimination in violation of Title VII.
The Court based its ruling on three different cases. A skydiving instructor and a child-welfare-services coordinator for Clayton County, Georgia sued their respective employers in federal court because they were terminated for being gay. They contended that such terminations violated Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, religion, sex, and national origin. The U.S. Court of Appeals for the 2nd Circuit ruled in favor of the skydiving instructor, however the U.S. Court of Appeals for the 11th Circuit ruled against the child-welfare-services coordinator in Clayton County.
The third lawsuit was filed by the Equal Employment Opportunity Commission (EEOC). In this case, an employee of a funeral home was fired because the employee told her employer that she would live as a woman. The district court ruled in favor of the funeral home, contending that Title VII does not protect transgender employees from discrimination. This decision would later be reversed by the U.S. Court of Appeals for the 6th Circuit.
The Supreme Court issued one ruling on all three cases. Justice Neil Gorsuch wrote for the majority, which included Chief Justice John Roberts, and Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.
Justice Gorsuch stated that the issue of whether an employer could terminate an employee because of sexual orientation or gender identity “is clear.” When an employer terminates an employee for such reasons, the employer “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.”
Justice Samuel Alito wrote a dissenting opinion with Justice Clarence Thomas. Justice Alito argued that the Court improperly legislated the issue of transgender and homosexual discrimination into Title VII under the guise of textualism. He went on to argue that the issue 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.”
Justice Brett Kavanaugh wrote a separate dissenting opinion. He contended that the phrase “discriminate based on sex” in Title VII does not include discrimination based on sexual orientation. Justice Kavanaugh would go on to say that “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”
This decision clarifies that Title VII’s prohibition of sex-based employment discrimination includes discrimination based on sexual orientation and transgender status. This is consistent with the 7th Circuit’s 2017 decision in Hively v. Ivy Tech. Discrimination based on sexual orientation and gender-related identity is also prohibited by the Illinois Human Rights Act.