In a landmark 6-3 decision, the Supreme Court ruled on Monday that Title VII protections extend to gay and transgender employees. The Bostock case was a consolidation of three cases wherein an employee was terminated for being homosexual or transgender. Gerald Bostock was fired shortly after joining a gay recreational softball league. Donald Zarda was terminated shortly after he announced being gay. Aimee Stephens was fired after informing her employer that she intended to transition to life as a woman.
The employers in each case argued that the terminations did not fall under the Title VII protections for discrimination based on sex. The employers did not contest that the employees were fired for being gay and transgender, respectively. Instead, they argued that they would have treated an employee the same whether the employee was a gay woman or a transgender man, as opposed to a gay man or transgender woman. They argued that sex, sexual orientation, and sexual identity are distinct categories. Since the adverse employment action would have been applied even-handedly between men and women, there could be no Title VII violation.
The majority opinion, written by Justice Gorsuch, stated that applying the adverse employment policy uniformly against men and women does not justify the discrimination, it actually doubles it. Justice Gorsuch explained that this is because any discrimination against gay or transgender individuals is necessarily based on sex. Applying a plain-meaning textualist interpretation of the word “sex,” Justice Gorsuch posed this hypothetical: if an employer has two employees who are romantically attracted to men, one of which is a man and the other a woman, the only distinction between the two employees is their sex. It follows from this assertion that any resulting adverse employment action would be based, at least in part, on the sex of the employee. Similarly, if there are two employees who identify as women, but one of the employees was born biologically male, any adverse employment action levied against that employee is necessarily based on their sex.
Justices Alito, Thomas, and Kavanaugh dissented from the majority opinion. The dissenters argued that if the drafters of Title VII had intended sexual orientation and sexual identity to be included in the protected classes, they would have said so. After all, Congress has used those terms in other pieces of legislation. Additionally, Congress has tried to pass measures to have these terms included under Title VII which have, thus far, failed. These Justices also argued that it was improbable that the drafters intended “sex” to encompass sexual orientation and identity when the Civil Rights Act of 1964 was passed and it is not with the Court’s powers to redefine that language.
The majority did not deny that sex, sexual orientation, and sexual identity are distinct from each other. They did not claim that the latter terms are encompassed in the protected class of “sex,” but rather, that there can be no discrimination on the basis of sexual identity or sexual orientation that doesn’t necessarily rely on the sex of the employee. Applying a “but-for” test, the Court held that the employees would not have been terminated but-for their sex. This constituted a violation of Title VII.
Roughly half of states currently offer protections against LGBTQ discrimination in the workplace, including the recent addition of Virginia. In the wake of Bostock, we will likely see an increase in gay and transgender employees bringing claims of discrimination under Title VII. We will likely see states redrafting their anti-discrimination employment laws to comport with this new ruling in the next legislative sessions.
 Kollman & Saucier wishes to acknowledge the contribution of Luke Versweyveld, who is the primary author of this blog post. Mr. Versweyveld is an Intern with the Firm and a student at the University of Virginia School of Law – Class of 2022.