SCOTUS holds LGBTQ status is protected within Title VII’s meaning of “sex”
The Supreme Court held that LGBTQ status is already protected within Title VII’s meaning of the word “sex.”
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. 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 authoring the majority opinion, Justice Gorsuch observed that the word “sex” would likely not have been read that way by the drafters of Title VII in 1964, but the majority held that the term is unambiguous as drafted; according to well-established precedent, resort to legislative history is not permitted when a statutory text is unambiguous.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
The majority confirmed that, while Title VII’s “sex” protections directly protect such traits/classes, plaintiffs may also assert sex-stereotyping claims related to such traits/classes, just as plaintiffs can assert sex-stereotyping claims based on male-female cys-gendered status.
To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a different matter.