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Supreme Court extends employment protections to LGBT individuals

Gorsuch, Roberts join liberal judges in first LGBT decision since Kennedy's retirement

Supreme Court Justices Neil Gorsuch, left, and Brett M. Kavanaugh are seen during President Donald Trump's State of the Union address in the House Chamber on February 4.
Supreme Court Justices Neil Gorsuch, left, and Brett M. Kavanaugh are seen during President Donald Trump's State of the Union address in the House Chamber on February 4. (Tom Williams/CQ Roll Call file photo)

The Supreme Court on Monday extended broad workplace protections to gay, lesbian and transgender employees, in a decision that found a 55-year-old anti-discrimination law covers them even if Congress did not intend that when it passed the law.

The 6-3 decision, written by conservative Justice Neil M. Gorsuch, pointed out that the Civil Rights Act of 1964 adopted broad language that prohibits private companies from discriminating against employees on the basis of “sex,” seen at the time as a historic step for women’s rights.

But sex “plays a necessary and undisguisable role” when employers fire someone for being homosexual or transgender, Gorsuch wrote, even if that wasn’t why lawmakers included “sex” in the law at the time.

“We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law,” Gorsuch wrote.

The decision essentially settles an ongoing legislative fight in Congress. Democratic lawmakers, who this year advanced legislation to ensure LGBT workplace protections under Title VII no matter how the court rules, had argued in a brief that “sex” already covers LGBT workers. Republican lawmakers filed a brief in the case to argue that it doesn’t.

In a dissent, Justice Samuel A. Alito Jr. pointed to that legislative action to argue that the Supreme Court’s decision usurped the authority of Congress and that “a more brazen abuse of our authority to interpret statutes is hard to recall.”

“There is only one word for what the Court has done today: legislation,” Alito wrote in a dissent, which was joined by Justice Clarence Thomas.

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But Gorsuch, a Trump appointee, in the majority opinion, wrote that judges can’t overlook “plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”

Joining Gorsuch in the majority were conservative Chief Justice John G. Roberts Jr., and the four justices that comprise the liberal wing of the court: Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor.

The decision covered three cases — from a transgender funeral home worker, a gay skydiving instructor and a gay county worker.

The cases mark the first time the Supreme Court has decided an LGBT rights case since the retirement of Justice Anthony M. Kennedy, who wrote a series of opinions such as the legalization of same-sex marriage in 2015 that helped usher in a new era of civil rights.

Before today, 28 states have no express protections for LGBT employee rights.

The Obama administration, through the Equal Employment Opportunity Commission, had interpreted Title VII in the same way as the Supreme Court did Monday. But the Trump administration flipped positions and cited congressional inaction to make its case.

Justice Brett M. Kavanaugh, in a dissent that argues that it was Congress’ role to “amend” Title VII to include LGBT employees under the protections, nonetheless noted the historic nature of the decision.

“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Kavanaugh wrote.

“They have exhibited extraordinary vision, tenacity, and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result,” he wrote.

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