On June 15, 2020, the United States Supreme Court issued a landmark decision in Bostock v. Clayton County, holding that Title VII of the Civil Rights Act of 1964 protects gay and transgender rights in the workplace.  Title VII makes it “unlawful…for an employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual's race, color, religion, sex, or national origin.”  42 U.S.C. §2000e–2(a)(1).  The 6-3 decision extends federal workplace protections for the first time to millions of LGBT employees nationwide, holding that the Civil Rights Act's bar on discrimination based on sex also bars discrimination based on sexual orientation and gender identity:  “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.”  Up to now, it was legal in more than half the states to fire workers for being gay, bisexual, or transgender.

In 2015, the Supreme Court issued another groundbreaking decision in Obergefell v. Hodges, 576 U.S. 644 (2015), recognizing a constitutional right to same-sex marriage.  Today's decision is just as significant in extending the rights of the LGBT community.  As some constitutional scholars have noted, on its terms the decision is only about discrimination in the workplace, but it will likely open the door to other challenges to discrimination on the basis of sexual orientation or transgender status on the ground that those instances of discrimination are also based on sex.  The fact that the decision came from a conservative court bodes well for the continued recognition of the rights of the LGBT community.

At the center of the debate between the majority and the dissents is the role of the judiciary and statutory interpretation.  Justice Alito's dissent notes that “[m]any will applaud today's decision because they agree on policy grounds with the Court's updating of Title VII.  But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed.  The question is whether Congress did that in 1964.  It indisputably did not.”  (Emphasis in original.)  Further, Justice Alito writes that “[t]here is only one word for what the Court has done today:  legislation.  The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive….A more brazen abuse of our authority to interpret statutes is hard to recall.”  In his dissent, Justice Kavanaugh similarly writes that, “[l]ike many cases in this Court, this case boils down to one fundamental question:  Who decides?  Title VII of the Civil Rights Act of 1964 prohibits employment discrimination ‘because of' an individual's ‘race, color, religion, sex, or national origin.'  The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation.  Under the Constitution's separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”  While the majority opinion also agrees that “[t]he place to make new legislation, or address unwanted consequences of old legislation, lies in Congress,” it reaches a very different result in applying that principle:  “[T]he same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.”  While acknowledging that “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” the majority concludes that “the limits of the drafters' imagination supply no reasons to ignore the law's demands.  When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest.  Only the written word is the law, and all persons are entitled to its benefit.”

In spite of Justice Kavanaugh's dissent, his words, out of both the majority and the two dissents, perhaps best acknowledge how momentous today's decision is:  “Notwithstanding my concern about the Court's transgression of the Constitution's separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans.  Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. 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.”