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  • Writer's pictureLeslie A. Farber

Supreme Court Rules LGBTQ Employees are Protected from Sex-Based Discrimination

LGBTQ protest march

In a historic decision, the U.S. Supreme Court (SCOTUS) ruled on June 15, 2020 that sex-based discrimination in the workplace includes discrimination based on gender identity or sexual orientation. The landmark ruling will extend protections to the approximately one million workers who identify as transgender and 7.1 million lesbian, gay and bisexual workers nationwide.

The question before the justices was the meaning of “sex” in Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. “Sex” is not defined in the statute. The justices had to decide whether prohibiting discrimination because of sex applies to gay and transgender workers.

The 6-3 opinion was written by Justice Neil Gorsuch, President Trump's first Supreme Court nominee, and joined by Chief Justice John Roberts and the court's four liberal justices: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

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."

The conservative justice acknowledged that when the law was passed in 1964, Congress may not have been thinking of gay, lesbian and transgender rights. Noting that Congress might not have "anticipated their work would lead to this particular result," he said the terms of the statute are clear. “The limits of the drafters' imagination supply no reason to ignore the law's demands," he wrote.

SCOTUS considered two sets of cases. The first case concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation. Gerald Bostock was fired from a government program that helped neglected and abused children in Clayton County, Ga., after he joined a gay softball league. In the second case, skydiving instructor Donald Zarda also said he was fired because he was gay.

The gender identity case was brought by a transgender woman, Aimee Stephens, who was fired from a Michigan funeral home after she shared her gender identity with co-workers. Stephens’ challenge marked the first time the court heard arguments regarding the civil rights of a transgender individual. Sadly, Ms. Stephens died shortly before this court decision was published and became law.

Until the June 15 ruling, it was legal in more than half of U.S. states to fire workers for being gay, bisexual or transgender. The decision is a major victory for the LGBTQ community and a loss for the Trump administration, which sided with employers in the three cases and has used its rule-making power to issue new directives that take away previous protections for transgender individuals. Just days before the SCOTUS decision, the U.S. Department of Health and Human Services' Office of Civil Rights moved to roll back protections for transgender people under Section 1557 of the Affordable Care Act, which bans discrimination in healthcare.

LGBTQ advocates applauded the court’s ruling, which allows people who say they were discriminated against in the workplace based on their sexual orientation or gender identity to file lawsuits, just as people claiming race and sex discrimination may.

New Jersey’s Law Against Discrimination has protected LGBTQ non-federal employees from employment discrimination since 1996.

If you or a loved one have been subject to discrimination in the workplace because of your sexual orientation or gender identity, we are here to provide advice and legal counsel. Please call us at 973-509-8500 x213 or email

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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