Brief Facts of the Case
The case arose out of a petition filed by Gerald Bostock. Clayton County had fired Gerald Bostock for “conduct unbecoming a county employee”. This was shortly after his participation in a gay recreational softball league. There were two more similar cases where the employers fired their employees for not being sexually oriented as per the societal norms. The employers were sued under Title VII of the Civil Rights Act of 1964. The allegations levied on them were that of sexual discrimination.
The said act prohibits discrimination in the workplace on the basis of race, colour, religion, sex or national origin. However, the Court had to consider an entirely different issue. It had to determine whether the Act also bars discrimination on the grounds of sexual orientation or gender identity.
The Court by a majority of 6:3 held in the affirmative. The Civil Rights Act, 1964 also gives protection to employees on the basis of their sexual orientation or gender identity. Discrimination based on homosexuality or transgender status called for sexual discrimination too. The Court recorded that the Employment decisions must not revolve around a person’s homosexuality or transgender status.
The Majority Judgement
Justice Neil McGill Gorsuch authored the Majority Judgement. The judgement is very logical in its explanation. It gave an example of two individuals, equally attracted to men. The only difference being, one is a man and the other, a woman. The employer fires the man for being attracted to a man but keeps the woman. In such a case, the employer treats the man with bias for “traits or actions it tolerates in his female colleague“. The discrimination is nothing but based on sex which should not be “relevant to employment decisions“.
Another example that the judgement quotes is that of a transgender who was identified as a male when born. But now he identifies himself as a female. Here, the employer doesn’t discharge another employee who was identified a female at birth and still does so. However, he discharges the former. In such a case, he is intentionally allowing the sex factor to play an “unmistakable and impermissible role in the discharge decision“.
Sex here plays a “necessary and undisguisable role” in the employment decision. Title VII of the Act forbids exactly that.
The Dissent by Three Judges
Justice Alito, Justice Thomas and Kavanaugh. Justice Alito said that the concept of discrimination based on sex is different from discrimination because of ‘sexual orientation’ or ‘gender identity’. He said that citizens know and want gays, lesbians and transgenders to be treated with “dignity, consideration and fairness“. But the Court’s authority was limited to “saying what the law is”.
Justice Kavanaugh was of the view that the judgement delivered by the majority was a transgression of the Constitution’s separation of powers. However, he did call the majority judgement an important victory for the millions of American gays and lesbians. He acknowledged their hardships while trying to survive amidst such prevalent bias. He urged them to take pride in the change that’s been brought about now. Nevertheless, he maintained his disagreement. He respectfully opined that it was the role of the Congress to amend Title VII and not of the Court.
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