Today the United States Supreme Court answered the question of whether Title VII, the federal law that prohibits workplace discrimination “on the basis of sex,” protects LGBT employees with a resounding “Yes.”  In a 6-3 decision, the Court held that: “The answer is 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.”

In October 2019, the Court heard oral argument in a trio of cases that presented this issue and had split lower courts.  In one case, a male child welfare advocate participated in a gay recreational softball league.  After a prominent community member complained, the advocate was fired.  In another case, a skydiving instructor told a customer with whom he was tandem diving that he was gay (in an attempt to put the female customer’s boyfriend at ease), and was terminated days later.  In the final case, an employee who got a job at a funeral home while presenting as male was later diagnosed with gender dysphoria; after she wrote to her employer that she planned to begin living and working “full-time as a woman,” she was fired.

Though factually distinct, in each case, the employees similarly alleged that they were terminated because of their sex, in violation of Title VII.  That raised the question of whether Title VII’s prohibition on discrimination because of “sex” also prohibits discrimination based on an employee’s identity as gay or transgender.  The Court stated that it did not need to look any further than the text of Title VII to answer that it does.  “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Court did not decide whether the employees actually were fired “because of” their sex.  That is an issue for lower courts.  Rather, the Court’s expression today is that LGBT employees cannot be terminated because they are gay or transgender.

Today’s decision does not change state law in about half the states around the country that already protect employees on the basis of sexual orientation, gender identity or expression (including Oregon, Washington, and California).  But in states that do not already provide such protection, LGBT employees can now seek protection under federal law.

The Court closed with a summation of its textual approach and Title VII’s broad reach: “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”