Justice Gorsuch Disappoints in Transgender Decision

On June 15, 2020, the Supreme Court of the United States handed down its decision in Bostock v. Clayton County, Georgia. In that decision, the Court held that the ban on sex discrimination in employment contained in Title VII of the Civil Rights Act also banned employment discrimination based upon sexual orientation and gender identity.

This far-reaching decision means that most American employers with 15 or more employees must now allow “transgendered” behavior—including cross-dressing and the use of opposite-sex restrooms—in the workplace. Such behavior is now deemed protected under federal civil rights legislation.

Senator Josh Hawley speaks on the Supreme Court’s Bostock Decision

In a 6-3 decision, Chief Justice John Roberts and Associate Justice Neil Gorsuch joined the Court’s four liberal justices (Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) to form a majority. Writing for the majority, Justice Gorsuch said, “The statute’s message for our cases is 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.”

Both Justice Samuel Alito and Brett Kavanaugh authored dissenting opinions. In his dissent, Justice Alito argued that the majority “‘attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice [Antonin] Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.’”

Two plaintiffs in this case claimed that they had been fired from their jobs due to homosexuality, while the other plaintiff—a male employee at a Michigan funeral home—was let go because he had adopted a “transgender” identity and had begun wearing women’s clothing in the workplace.

Title VII of the Civil Rights Act of 1964 says nothing about sexual orientation or gender identity. The statute reads, in pertinent part, as follows:

“It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.[1]

Many states—including New York, which passed the Gender Expression Non-Discrimination Act (GENDA) in 2019—have passed laws banning discrimination based on the categories of “sexual orientation” and “gender identity”. However, Congress has passed no such law. LGBT advocates have successfully used the court system to implement this policy because their efforts at passing such a law have not met with success.

New Yorkers for Constitutional Freedoms is grieved by this Supreme Court decision. American employers should not have to capitulate to leftist lies concerning sex and gender.


[1]  U.S. Code § 2000e–2(a).