Supreme Court Holds Title VII Bars Discrimination on Basis of Sexual Orientation and Gender Identity

June 19, 2020

On June 15, 2020, in Bostock v. Clayton County, Georgia, the U.S. Supreme Court held that an employer who fires a person for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

Title VII, which applies to employers with 15 or more employees, prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” The issue in Bostock was whether “because of...sex" includes discrimination based on sexual orientation and gender identity. The Supreme Court ruled that it does. A majority of six justices found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The plaintiffs conceded that when Title VII was passed in 1964, the term “sex” referred to biological distinctions between men and women, and the Court proceeded on that assumption. Nevertheless, the majority held that Title VII prohibits discrimination on the basis of sexual orientation and gender identity, categories that all parties agreed were not contemplated by Congress when it passed the statute.

Despite acknowledging that “homosexuality and transgender status are distinct concepts from sex,” the majority decided that the statutory language “because of…sex” is broad enough to encompass those distinctly different concepts.

This decision does not impact Colorado employers because the Colorado Anti-Discrimination Act, which applies to virtually all employers in the state, has expressly prohibited employment discrimination on the basis of sexual orientation and gender identity since 2008.

Over the years, members of Congress have introduced bills to amend Title VII to include sexual orientation and gender identity as protected categories. The Equality Act, reintroduced last year, is the latest attempt. So far, however, Congress – comprised of elected representatives of the people – has not passed any of those bills. Regardless of one’s views on LGBTQ rights, anyone who values democratic institutions and representative government should be dismayed that the nation’s high court has usurped the role of the legislature through an unwarranted reinterpretation of Title VII.