June is LGBTQ Pride month, which explains the appearance of rainbow flags everywhere. June 12 is the anniversary of the Pulse Night Club massacre where a gunman killed nearly 50 people in a gay night club. Nevertheless, on June 12, 2020, the Trump administration announced that it was finalizing its regulation to exclude protections against health-care discrimination for LGBTQ people. The administration’s rationale is that prohibitions against sex discrimination refer to “biological” sex.
Today the Supreme Court has seriously undercut the administration’s rationale. In Bostock v. Clayton County, No. 17-1618 (U.S. June 15, 2020), the Court held 6-3 that the prohibition against sex discrimination in Title VII covered discrimination on the basis of sexual orientation. Writing for the majority, Justice Gorsuch explained that Title VII prohibits employment discrimination “because of” sex. This is simply “but for” causation, meaning that if an individual’s sex is part of the reason for the adverse act, it is prohibited. So if an employer fires someone because he is attracted to men or because she identifies as a gender different from the one assigned at birth, the employer violates Title VII. Acknowledging that Congress may not have foreseen all the consequences of the words it chose, the Court emphasized that it is the meaning of the words used, not whatever might have been in the minds of the drafters at the time.
Justice Alito, joined by Justice Thomas, dissented, accusing the majority of legislating and predicting a parade of horribles that would follow, starting with the use of bathrooms and locker rooms by transgender people. Justice Kavanaugh wrote a separate dissent also accusing the Court of legislating and compiling various cases with a contrary reading.
Although the majority expressly declined to speculate on how Bostock will apply elsewhere, it is fairly clear that the logic will be applied to other settings, such as housing, health care, and Title IX. This is an important decision for civil rights activists.