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Somewhat Shockingly, The Supreme Court Just Ruled That Employers Cannot Discriminate Based on Sexual Orientation or Identity

Following hit after hit this year, this Pride Month people have a very big win to celebrate. 

On Monday, June 15, with a 6-3 majority, the Supreme Court ruled that it violates federal law to fire or refuse to hire someone for being a member of the LGBTQ+ community. The major civil rights victory is the most sweeping ever to protect LGBTQ+ individuals from discrimination after ruling that the ban on sex discrimination also protects workers on the basis of gender identity and sexual orientation. 

While same-sex marriage was legalized in 2015 in the Obergefell v. Hodges ruling, firing LGBTQ+ workers on the basis of their orientation and gender identity was still legal across the country. In 28 states, employers were able to fire people for being LGBTQ+. According to a USA TODAY report, half of LGBTQ+ Americans lived in a state where they could be fired due to their identity. 

This decision by the Supreme Court is a firm break from the stance of the Justice Department under President Trump, which claimed that Title VII of the Civil Rights Act of 1964, which prevents people from being fired on the basis of “race, color, religion, sex, or national origin,” does not apply to sexual orientation and gender identity, and it comes just days after Trump’s administration announced its decision to allow health care providers the right to deny services to transgender people.  

Since the ruling, Trump hasn’t tweeted about these new regulations beyond a simple tweet of “LAW & ORDER!”, which he’s frequently used to condemn those protesting police brutality. However, while the president is an avid tweeter, his silence is not surprising, given this ruling is a failure to his administration’s efforts to curtail protections for the LGBTQ+ community. 

Neil Gorsuch and Brett Kavanaugh, the Supreme Court judges confirmed under Trump, were touted as wins for the conservative agenda — which includes rolling back protections for LGBTQ+ people. However, in a demonstration of what a Supreme Court judge is supposed to do, Gorsuch did not follow the stance of the administration that put him on the bench, but instead followed the law, which was a shock for many across the country. In the majority opinion, Gorsuch wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 

He said there is no way to disentangle sex from this decision, as one’s biological sex is what defines someone as transgender. “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Gorsuch wrote.

He was followed by fellow conservative Chief Justice John Roberts Jr. in the majority with Justices Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan, and Stephen Bryer. Kavanaugh, alongside Justices Samuel Alito Jr. and Clarence Thomas, dissented. 

Alito accused Gorsuch of attempting to use a conservative legal approach known as textualism, which bases the decision solely on the text of the law, but said that “no one should be fooled.” 

“There is only one word for what the Court has done today: legislation,” Alito wrote in the dissent. 

However, this thinking is what led to the legalization of same-sex marriage across the United States in 2015, as if a man wants to marry a woman it discriminates to not let a woman also marry a woman, and vice versa. According to the Justice Department, however, issues can only be considered sex discrimination if it occurs between “similarly situated” individuals, claiming that one could not compare straight and gay people or a cisgender and transgender person. Instead, the Justice Department said that it is okay to discriminate against LGBTQ+ individuals if they were equally doing so. “An employer who discriminates against employees in same-sex relationships thus does not violate Title VII as long as it treats men in same-sex relationships the same as women in same-sex relationships,” the Justice Department said. 

Now, LGBTQ+ people are able to live openly across the United States without fear of workplace discrimination, but the fight for equal rights continues as the Trump administration and individual states continue to rollback LGBTQ+ protections. 

Elizabeth Karpen

Columbia Barnard '22

Lizzie Karpen is 2022 graduate of Barnard College, the most fuego of women’s colleges, who studied Political Science and English with a concentrations in Film and American Literature. To argue with her very unpopular opinions, send her a message at @lizziekarpen on Instagram and Twitter. To read her other work, check out Elizabethkarpen.com.