Today the United States Supreme Court ruled in Bostock v. Clayton County that discrimination on the basis of sexual orientation and gender identity is prohibited discrimination on the basis of “sex” in employment under Title VII of the Civil Rights Act of 1964.
Thus employers subject to Title VII may no longer discriminate against employees on the basis of sexual orientation or gender identity. Prudent employers may want to make sure that their employees become aware of this and that they govern themselves accordingly.
The vote in the Bostock case was 6-3, with the majority opinion written by Justice Gorsuch, who was appointed by the current President. Also notably, in the majority was Chief Justice Roberts. In dissent were Justices Alito, Thomas, and Kavanaugh, who was also appointed by the current President.
The Court actually decided three cases together, Bostock and two cases consolidated with it, two of them on sexual orientation and one on gender identity, from circuit courts of appeal in Atlanta, Chicago, and Cincinnati.
The cases only involved Title VII, but it seems very likely the same analysis will be applied to the term “sex” in other settings, such as the prohibition on discrimination on the basis of sex under the Affordable Care Act, which the current Administration just last week ruled did not include gender identity.
Lower courts will now have to interpret and apply the Court’s decision, which will no doubt be very interesting.