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Law & the Courts

Supreme Court Extends Sex-Based Anti-Discrimination Protections to Transgender, Gay Employees

The Supreme Court Building in Washington, D.C., March 18, 2020 (Tom Brenner/Reuters)

The Supreme Court ruled Monday that federal sex-based civil rights law protects workers from discrimination on the basis on sexual orientation and gender identity.

The six-to-three decision established that Title VII of the Civil Rights Act covers sexual orientation as well as an employee’s sex, meaning workers will now be protected in the 29 states that do not have laws protecting all LGBTQ employees from job discrimination. The ruling upheld decisions by lower courts that concluded job discrimination on the basis of sexual orientation was included in illegal sex discrimination.

Chief Justice John Roberts joined the court’s liberal justices in voting with the majority, as did Justice Neil Gorsuch, who wrote the opinion for the court.

“We agree that homosexuality and transgender status are distinct concepts from sex,” Gorsuch wrote in the majority opinion. “But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”

The case revolved around two gay men and one transgender individual who claimed they faced employment discrimination due to their sexual orientation.

One of the men, Donald Zarda, alleged that he was fired from his skydiving instructor job on Long Island in 2010 after he told a woman he was assisting with a parachute jump that he was gay in an effort to help her feel more comfortable. Zarda died in 2014 while his lawsuit was still ongoing.

Justices Samuel Alito and Brett Kavanaugh penned dissents to the decision, both accusing the high court of legislating from the bench.

“There is only one word for what the Court has done today: legislation,” Alito wrote, saying the court has essentially taken the provision on employment discrimination and sexual orientation in the Equality Act, which has yet to be passed, and “issued it under the guise of statutory interpretation.”

“A more brazen abuse of our authority to interpret statutes is hard to recall,” Alito wrote, adding that the majority’s opinion “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.”

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