The Supreme Court has ruled that firing someone for being homosexual or transgender is against the law. In a 6-3 decision, authored by Justice Neil Gorsuch, the high court ruled June 15 that the Civil Rights Act of 1964 forbids such discrimination. Chief Justice John Roberts joined Gorsuch, along with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the majority. Justice Clarence Thomas joined Justice Samuel Alito in dissent, while Justice Brett Kavanaugh dissented separately. In a welcome surprise for limited-government advocates, the Court couched its reasoning for the expanded right in the text of the statute, not from a penumbra.
What Is Sex?
The Court ruled on the claims of three plaintiffs who had one thing in common: They had been fired because they were gay or trans. Federal law says employers cannot discriminate in employment “because of such individual’s race, color, religion, sex, or national origin.” It’s the word sex and what that includes that has changed the law. Gorsuch and the majority contend that any discrimination based on same-sex attraction or trans status is sex-based discrimination and therefore banned by the statute. That is now the law of the land. The dissenters say that discriminating against homosexuals, for instance, is not necessarily based on sex but on sexual preference, which is not banned by the law.
“When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.”
The majority opinion goes on to add that gay or trans status need not be the only reason a person has been discriminated against for firing to be illegal. It says, “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” The dissenters seemed most interested in this aspect of the ruling and stood in opposition to it.
Dissenters Say Sex ≠ Sexuality
Alito wrote: “’[H]omosexuality and transgender status are distinct concepts from sex’ … and discrimination because of sexual orientation or transgender status does not inherently or necessarily constitute discrimination because of sex.”
Kavanaugh said in dissent, “The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation.” He answered it with a resounding no, writing “[u]nder the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” Agree or not, it’s good news that Gorsuch framed the question differently – one where no expansion is granted.
Win for Limited Government?
Ordinarily, any judicial expansion of rights to sue, as granted in this case, means bad news for liberty. That’s because so much of the expansion of state power comes not from explicit grants of power in the Constitution or federal law but by judicial opinion. This type of expansion allows the courts to invent all sorts of entitlements, what we call legislating from the bench. Thomas is said to have a sign in his office that says, “Please do not emanate into the penumbra.” This mocks Justice William O. Douglas, who used that language to declare a constitutional right to use contraception in 1965’s Griswold v. Connecticut.
Why would limited-government advocates argue in favor of letting Connecticut ban contraceptives? We first have to divorce “may” from “should.” It seems that so many leftist jurists first decide what the law should be and then figure out how to get there rather than focus on what the law is. For the same reason, they would argue that employers should be legally able to fire a gay person – that when the law was passed in 1965, few if any thought it meant an employer couldn’t discriminate against homosexuals. Gorsuch’s reasoning is vital here: He didn’t mention the humanity of the appellants, what the loss of jobs meant to them, or the plight of Americans with gender dysphoria; he says the law as written requires this result.
The Court’s ruling said, “when the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest” and “only the written word is the law, and all persons are entitled to its benefit.” What does this mean for the other issues surrounding sex preference and gender? We will have to wait for years and many more court decisions. The Supreme Court left us with this:
“[W]e do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’”
Read more from Scott D. Cosenza.