In one of its most important and far-reaching employment decisions, Bostock v. Clayton County, Georgia, the Supreme Court of the United States held that Title VII’s “because of sex” language forbids discrimination in employment against transgender and gay individuals. Not since Obergefell v. Hodges has the LGBTQ community celebrated a decision of this magnitude. Not to mention, this decision is the first significant victory for transgender rights in history. In the opinion, Justice Gorsuch, a Trump appointee, unequivocally explains:
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.
Just last week, prior to the Court’s ruling, the Trump administration announced its intention to do away with an Obama-era regulation under the Affordable Care Act (the “ACA”) that prohibits discrimination against transgender patients. While it would be out of character for the Trump administration to back off its position in the wake of this decision, the Bostock decision leaves little doubt as to how the Supreme Court might interpret “because of sex” or “on the basis of sex” language found in other federal anti-discrimination statutes modeled after Title VII.
While many progressive states and some municipalities have long protected LGBTQ employees by explicitly prohibiting discrimination based on sexual orientation, Bostock now extends these protections to LGBTQ employees everywhere. In its wake, we will certainly see an uptick in discrimination claims under Title VII, as well as challenges to other state and federal laws. While the Court’s thorough opinion in Bostock answers many questions concerning Title VII’s application to gay and transgender workers, the Court nevertheless left the door open to challenges by religious employers, many of whom have expressed disappointment in the decision.
During the coming months and years, the federal courts will likely see a spate of filings from gay and transgender individuals seeking to confirm the exponential expansion of their rights under various federal laws. A leader in many high-stakes employment matters, DOAR provides experts of various types of discrimination and harassment claims under federal and state laws, working with both plaintiffs and defendants.