June 2020 started out as a bad month for the world’s gay community and other sexual minorities. Because of Covid-19 the usually enormous Pride marches and celebrations held in June were called off. There were also concerns that the rainbow flag, long the symbol for Pride marches and protests, was now being used in the UK and elsewhere to show community support for health workers helping people who have Covid-19.
But by mid-month, things had changed dramatically.
Not only had the Black Lives Matter protests world-wide linked up with LGBTI communities, thus potentially strengthening both, but on June 15 the US Supreme Court delivered a landmark decision holding that it was unlawful to fire gay and transgender people ‘for being gay’.
The case involved several people who had been dismissed on this basis. Only one of the group, Gerald Bostock, is still alive. He had worked for a local government in the state of Georgia, as a child welfare advocate. The supreme court noted that under his leadership, the county had won national awards for its work. But then, a decade after he was employed, he began play in a gay recreational softball league; influential members of the county community made disparaging comments about his sexual orientation and soon he was fired. The grounds given were that he displayed ‘conduct unbecoming’ a county employee.
Justice Neil Gorsuch, who wrote the majority decision, said the court had to ‘determined the order public meaning’ of the law’s instruction that it was unlawful for an employer to fire someone ‘because of such individual’s race, colour, religion, sex or national origin.’
The only one of these at issue in the case was the ‘sex’ of the complaining parties. The statute prohibits dismissal ‘because of’ sex, but it refers to individuals rather than groups, an issue that the majority said was ‘anything but academic’.
If an employer fired a woman for refusing his sexual advances, he could not argue that, overall, he gave preferential treatment to female employees. ‘The employer is liable for treating this woman worse in part because of her sex.’
The law protected individuals of both sexes from discrimination and did so equally, the majority wrote. A ‘straightforward rule’ emerged from the language of the law: ‘An employer violates [the law] when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.’ In having this effect, the law’s message was ‘simply but momentous’.
In the case before the court, the message of the law was equally simple and momentous: ‘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.’
Employers might say that discrimination on the basis of homosexuality and transgender status ‘aren’t referred to as sex discrimination in ordinary conversation,’ the court said. Most likely even Bostock and the other two in whose name the case was brought, would say that they had been dismissed ‘because they were gay or transgender, not because of sex.’
But that would be to focus on what was ‘more relevant to the listener’, not on the legal issues. It would also not be an answer to claim that discrimination based on homosexuality or transgender status did not ‘intentionally’ discriminate based on sex. As we have seen, say the majority judges, ‘an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.’
The employers also argued that since 1964 when discrimination on the basis of sex was first outlawed by statute, Congress had considered several proposals to add sexual orientation to the list of protected characteristics, but these efforts had never become law. That ‘should tell us something’, the employers would argue.
However much readers may support the outcome reached by the majority in this case, there is a sense in which the minority judges have a point: there is a difference between ‘sex’, ‘gender’, ‘sexual orientation’ and ‘sexual identification’, even though the majority only seems to recognise ‘sex’. Is ‘sexual orientation’ any different from ‘sex’ for the purposes of the dispute in this case? The minority certainly thinks so, and their views on that difference are put forcefully in the two minority decisions.
It’s an interesting decision from a number of perspectives, not least because, contrary to expectations, it saw a majority formed across the spectrum of judicial views on the court. And while the outcome will stop dismissals based on ‘sex’, it says very little about related issues that have troubled some US lawmakers like whether separate toilets should be made available for transgender people. Nor does it deal with questions like that recently considered by the US courts: what about non employment-based discrimination against people because of their sex or sexual orientation? The case of a cake-maker who refused to prepare and sell a cake to a gay couple for their wedding illustrates the discrepancy. The dispute made its way to the Supreme Court where, in 2018, the majority held this was a free speech and freedom of religion issue and refused to sanction the cake-maker.