A landmark decision rendered by The U.S Supreme Court on June 15, prohibits employment discrimination of gay and transgender individuals. Expanding the scope of Title VII of the Civil Rights Act of 1964, which prohibits sexual discrimination, the court ruled that discrimination based on sex includes discrimination based on sexual orientation.
The court consolidated three cases Bostock v. Clayton County, Altitude Express v. Donald Zarda, and Harris Funeral Homes v. EEOC, where each of them involved the termination of employees by the employers upon learning about their sexual orientation or gender identity. Bostock, who used to work for Clayton County, Georgia, as a child welfare advocate, was terminated for conduct “unbecoming” of a county employee because of his participation in a gay recreational softball league. In another similar incident, Donald Zarda, who was a sky diving instructor was terminated shortly after he told one of his clients that he was gay. Finally, Amy Stephens who had joined the funeral home as a male employee was terminated after six months when she started going to work dressed in women’s clothes. In all of the above incidents, the sexual orientation of these employees is not said to have had any bearing on the skills required for their job.
Title VII outlaws discrimination on the grounds of race, color, religion, sex and national origin. The Court was faced with the issue as to whether the term ‘sex’ would also include sexual orientation. The employers, by referring to various contemporaneous dictionaries, emphasized that the term ‘sex’ refers only to an individual identity as a male or a female, as determined by reproductive biology. The employees on the other hand contended that the term is not restricted to anatomy and has wide contours to include sexual orientation and gender identity within its ambit.
With a majority of 6:3 the U.S Supreme Court finally put to rest the much-debated issue of whether termination of an employee on grounds of sexual orientation and gender identity would be a violation under Title VII. The landmark decision authored by Justice Neil Gorsuch recognized that “when an employer fires an employee for being homosexual or transgender, he fires that person for traits or actions that would not have been questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The majority relied on the ‘but-for causation test’ and held that so long as sex is one ‘but-for’ cause behind the employer terminating the employee, it involves a violation of Title VII. The court was of the view that an employee’s sexual orientation or transgender status should not be the basis for an employer’s decision and an employer who relies on an employee’s sex as a reason for his discharge from employment will be guilty of discrimination under Title VII.
The Court by citing a plethora of precedents vindicated its stance that any discrimination ‘because of’ sex would not be justified irrespective of the objective sought to be achieved. It relied on Phillips v. Martin Marietta Corp, wherein the employer refused to hire women with young children but hired men having young children. The employer eschewed the discrimination by pointing out that discrimination was dependent not only on ‘sex’ but also on another criterion, which was the presence of children. Similarly, in In Los Angeles Dept. of Water and Power v. Manhart, the employer insisted that its discrimination was mainly to promote equality of two sexes.
The court held that the lessons that the above cases hold for us would be that we are not concerned with a) the label or the reason why the discriminatory practice was undertaken, b) whether the discrimination was solely on the basis of sex or any other factor; c) whether the practice was adopted equally on both sexes as groups. It held that an adverse treatment of an individual due to his/her sexual orientation or transgender identity would inherently amount to discrimination irrespective of the above factors.
In a scathing dissent, Justice Alito along with Justice Thomas opined that ‘transgender status and ‘homosexuality’ are distinct concepts from ‘sex’ and discrimination on the basis of sexual orientation does not entail discrimination on the basis of sex and “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted”. To supplement this, he interestingly noted how homosexuality was considered to be a mental disorder in 1964 when Title VII was enacted. Also, he finds it difficult to understand how the cases of Phillips v. Martin Marietta Corp (where women with young children were discriminated against vs. men with young children) and Los Angeles Dept. of Water and Power v. Manhart (where women were required to make larger contributions to the pension fund ), cited by the majority to buttress their decision, finds any relevance in the current case as they were cases that plainly dealt with ‘discrimination on the basis of biological sex’.
The role of the judiciary is limited to the analysis of statutory text rather than statutory interpretation. Affirming this, Justice Kavanaugh in his dissent argued, while interpreting statutes, courts should adhere to the ordinary meaning and not the literal meaning. To explain this, he gives an example, “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes”
The separation of power collapses when the judiciary starts to legislate, and the Rule of law and democratic accountability suffers when courts start looking at legislators’ subjective intentions instead of the ordinary meaning of the text
In his dissent, J.Alito further raised concerns about the far-reaching ramifications of the decision and how it can have implications on freedom of religion, freedom of speech, personal freedom, and safety. For instance, bringing attention to bathrooms, locker rooms and similar things he states, “For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm” and the judgment provides no reason why a transgender person’s (with a male body and identifies herself as a female) claim to access women’s locker room might not succeed. He also raised similar concerns in women’s sports and housing.
While the victory is to be celebrated, the judgment also opens a new door for conflict between non-discrimination laws and freedom of religion. Title VII which grants an exemption for the religious organizations allows them to hire “individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities”. It remains to be seen in the future how the judgment impacts the hiring autonomy of faith-based organizations and if the same ‘but-for causation standard’ stands when the employee claims he/ she was terminated based on religious belief or expression i.e. if the individual’s conduct flouts religious tenets, noting that major religions like Christianity, Islam and Judaism do not recognize homosexuality. Also, the possibility of employers challenging the application of Title VII to gender identity or sexual orientation under the Religious Freedom Restoration Act 1993 is open if the employers feel such an application violates their religious convictions, a question that was not addressed by the court.
Nevertheless, the decision marks a resounding victory to the LGBTQ rights movement in the U.S and the fact that the ruling comes just days after the Trump administration reversed the non-discrimination protections for LGBTQ people in health-care and health insurance further adds to the victory.
ABOUT THE AUTHORS
Palak Kumar is currently an undergraduate student of B.A L.L.B (Hons) at the National Law Institute University, Bhopal.
Insaf Ahamad T.K is currently an undergraduate student of B.SW L.L.B (Hons) at the Gujarat National Law University, India.