Equal Employment Protection: US Supreme Court confirms LGBTQ+ protections

July 3, 2020

2 min read

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What's going on here?

The conservative-dominated US Supreme Court has declared workplace discrimination of LGBTQ+ individuals illegal.

What does this mean?

Prior to June’s landmark ruling in Boston v Clayton County, employers could fire workers for being gay or transgender without legal repercussions in nearly half of American states. Despite its marginal conservative majority, the Court produced a decisive 6-3 verdict. This is a major coup for liberals and it comes only five years after the legalisation of gay marriage.

Federal law under Title VII of the 1964 Civil Rights Act outlaws discrimination based on sex, as well as gender, race, colour, national origin and religion. This ruling extends the judiciary’s understanding of “sex” to include gender identity and sexual orientation, which represents what would have been an unthinkably progressive step only a few years ago.

Another surprising twist saw Neil Gorsuch, the arch-conservative Trump nominee, supplying the court’s justification for the decision. In it, he reasoned that discrimination against LGBTQ+ individuals is unavoidably based on how these people’s behaviour relates to their “sex”. Thus, “sex” is necessarily a consideration of any discrimination, such as firing, which is already illegal under the Civil Rights Act.

What's the big picture effect?

The Trump administration has engendered hostility towards the LGBTQ+ community. Only last week the administration rolled back Obama-era legislation that secured transgender protection from discrimination in healthcare.

Victory in the present case is significant but is not irreversible. The decision affirms a statutory right rather than a constitutional one, being based on the Civil Rights Act. This means the ruling could be legislated against in the future by Congress.

Samuel Alito, one of the three dissenting justices, described the judgment as a “brazen abuse” by the Court. He argued that the court’s decision went beyond its role of evaluating infringements of civil liberties by lower court justices. Alito and his supporters argue that the Court legislated and did not interpret. He believes understanding “sex” in such broad terms does not reflect the letter of the law, setting a dangerous precedent. Fellow Trump-nominated justice Brett Kavanaugh, whose ascent to the Supreme Court was mired by accusations of sexual assault, joined Alito in his condemnation. He spoke of “judicial dictate” and of “legislating from the bench”. 

The fight for equality in the United States will rumble on. Some will argue that it is the legal world who will reap the benefits from a spike in newly-sought wrongful termination cases. Yet the worry is that this decision will illuminate vast social fissures when the world’s wealthiest country is already struggling to keep its head above water.

Report written by George Maxwell

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