Everyone knows the United States celebrates its “birthday” every year on the 4th day of July.  But, as this nation has proven time-and-time again, the United States does a lot of its maturing in June.  The history speaks for itself: June 19, 1865, Federal orders are read in Texas freeing the last remaining group of enslaved people in the former Confederate States of America; June 12, 1967, in Loving v. Virginia, laws banning interracial marriage are declared unconstitutional; June 26, 2015, in Obergefell v. Hodges, the right of same-sex couples to marry is guaranteed by the Due Process Clause of Fourteenth Amendment; and June 15, 2020, in Bostock v. Clayton County, Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee because of the employee’s LGBTQ+ status.  Instead of the typical legal alert or update, a groundbreaking decision like Bostock deserves a discussion.

Background

Title VII of the Civil Rights Act of 1964 is one of the first pieces of Civil Rights legislation passed by the United States Congress since the reconstruction era of the 19th century.  The relevant portion of the law’s text prohibits an employer from discriminating against an employee “because of such individual’s race, color, religion, sex, or national origin.”

The question before the Court in Bostock and several companion cases was whether or not discriminating against an employee’s sexual orientation, and by extension transgender status, constitutes discrimination “because of. . . sex” under Title VII.

Before we talk about this legal question, it is only appropriate that we mention the parties involved in the case.  Importantly, the Court’s opinion in Bostock was the culmination of that case as well as Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, which occurred contemporaneously.

Gerald Bostock, who identifies as gay, was a highly capable and applauded child welfare services coordinator working for Clayton County, Georgia.  Despite his numerous awards and positive performance reviews, Bostock was fired shortly after joining a gay recreational softball league.

The late Donald Zarda was a skydiving instructor for Altitude Express.  Zarda was gay and would occasionally tell this to female clients who might otherwise feel uncomfortable being closely strapped to a man during a tandem dive. At some point, Zarda relayed his sexual orientation to his employer and shortly thereafter was terminated.

The late Aimee Stephens worked for R.G. & G.R. Funeral Homes as a funeral director and for much of Stephens’ employment, she presented as a man.  Shortly after telling her employer that she would begin transitioning, Stephens’ employer terminated her.

All of these cases were discussed in the Bostock opinion and the Bostock holding applies to all three cases.

Legal Arguments

The central question of these cases was simply whether or not discriminating against an employee’s sexual orientation, and by extension transgender status, constitutes discrimination “because of. . . sex” under Title VII.  This question called the Court to interpret a statute, which can be as pedantic as it is important.  The Court’s role is to parse through operative words dissecting their meaning at the time Congress drafted the statute.  In the case of Bostock, that meant examining the words and phrases “sex”, “discriminate”, “individual”, and “because of,” with the assistance of a mid-twentieth-century printing of Webster’s New International Dictionary.

Essentially, the employers argued that while it is possible using today’s understanding of the word “sex” to contemplate gay and transgender status, this could not have possibly been what a legislator had in mind when choosing to include the word “sex” in Title VII back in 1964.  In 1964, the predominant understanding of the term “sex” referred to biological differences between men and women.  The employees presented evidence that, in actuality, society already had an expanding view of the term “sex” in 1964.  Interestingly, this argument ended up being somewhat of a red herring, as Justice Gorsuch’s majority opinion stated “because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.”

Instead of being granular and technical, Justice Gorsuch’s logic was as simple as it was correct: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  In other words, if an employer fires a male employee for being attracted to men, but does not fire a female employee for being attracted to men, the employer is treating the male employee differently, at least in part, “because of” the male employee’s sex, which Title VII expressly prohibits.  This same logic applies to discrimination against transgendered employees.

The Significance

Lawyers look at developing precedents all of the time—before submitting anything to a court or a client, it is critical to verify that all of the law cited is still “good law.”  Most often, this is fairly mundane—a court announces an opinion, it does not affect most people, and the only people writing about it are legal blogs like this one.  But occasionally, an opinion is so important that it takes on an importance beyond its legal holding.  Bostock is one of those cases.  It represents an expansion of Civil Rights for a community that has been fighting for decades to be treated equally, in a month identified as LGBT Pride Month.

In a little over two weeks, the United States will celebrate its 244th “birthday.”  In the early days of this country, the founders drafted the United States Constitution to serve as the supreme law of the land to establish a “more perfect union.”  This week, with the Bostock opinion, our union became a little more perfect.  But of course, there is still a long way to go.

Keith Peterson is a law clerk having recently graduated with honors from Drexel University Thomas R. Kline School of Law.  He is working under the supervision of several senior lawyers at the Firm.

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