The U.S. Supreme Court, in a historic 6-3 decision, held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964, which, among other things, prohibits employment discrimination “because of … sex.”
The argument before the Supreme Court in Bostock v. Clayton County, Georgia (an opinion that consolidated three different cases raising the same issue) was simple and straightforward, leaving little room for nuance (or, remarkably, a single footnote in the Court’s majority opinion). Indeed, the employers in all three cases “d[id] not dispute that they fired the plaintiffs for being homosexual or transgender.” Thus, the only question before the Court was whether an employer is permitted by federal law to terminate an employee who is homosexual or transgender—for no reason other than that employee’s homosexuality or transgender status. In answering that question, the Court observed that “homosexuality and transgender status are inextricably bound up with sex.” To that end, the Court held that Title VII’s message is “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.”
But what about sex-specific bathrooms and dress codes? None of those issues were considered. The Court raised them, briefly, but then just as quickly punted for another day by noting: “[W]e do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’ … . Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.” Similarly, the Court noted that issues of religious liberty were not considered: “[W]hile other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”
So what, exactly, is the takeaway here? Although Bostock will certainly be hailed as a watershed moment for LGBTQ+ rights, the actual holding—while profound—is quite narrow. Employers should obviously take note that homosexual and transgender employees are now members of a federally protected class when it comes to firing (and, by extension, hiring). But what effect this decision will have on “lesser” employment issues (e.g., the impact of sex-specific dress codes on transgender employees) remains to be seen.