- The Washington Times - Monday, June 15, 2020

The Supreme Court ruled Monday that employers cannot discriminate against workers on the basis of their sexual orientation or gender identity, marking a landmark victory for gay rights groups authored by one of President Trump’s appointments to the high court.

Justice Neil M. Gorsuch’s opinion in the 6-3 ruling decides one of the major battlegrounds in gay rights, ending years of litigation and conflicting court rulings with a forceful statement that says laws against discrimination on the basis of sex also apply to the categories of sexual orientation and gender identity.

Justice Gorsuch said to treat people differently because of their sexual attraction is discrimination, which means it is banned by Title VII of the Civil Rights Act of 1964, which explicitly prohibits employment discrimination on the basis of sex.

“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,” he wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

He was joined by Chief Justice John G. Roberts Jr. and the court’s four Democratic appointees.

Writing in dissent was Justice Samuel A. Alito Jr., who said the majority was effectively rewriting the 1964 law and reading “sexual orientation” into a statute whose plain words don’t include it and whose authors never imagined it being stretched that far.

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He pored through dictionaries of the 1960s and said he could find no evidence that anyone understood the word “sex” to mean orientation or identity.

He rebuked the majority’s “arrogance” and “audacity,” called their reasoning “preposterous” and “jaw-dropping” and said they were “irresponsible” for ignoring the implications of making a decision themselves rather than leaving the issue to Congress.

He pointed out that every appeals court that addressed the issue before 2017 found no basis for reading orientation or identity in the 1964 law and said many states implicitly agreed because they passed their own anti-discrimination protections for gay and transgender people that went beyond federal law.

“The position that the court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety,” he wrote. “No one should think that the court’s decision represents an unal­loyed victory for individual liberty.”

Also dissenting were Justices Clarence Thomas and Brett M. Kavanaugh.

Gay rights advocates hailed the ruling, and some activists online said the decision brought them to tears.

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Presumptive Democratic presidential nominee Joseph R. Biden called the ruling “a momentous step forward for our country.”

“Before today, in more than half of states, LGBTQ+ people could get married one day and be fired from their job the next day under state law, simply because of who they are or who they love,” Mr. Biden said.

The high court’s ruling settled three cases that covered both sexual orientation and gender identity situations.

One case involved a county employee in Georgia, Gerald Bostock, who was fired after he began playing in a gay softball league. Donald Zarda, a skydiving instructor, brought a lawsuit in New York after he was fired from his job for mentioning he was gay. Aimee Stephens, who was hired at a funeral home as a man, was fired after she told the owners she would present herself as a woman.

“There are truly no words to describe just how elated I am,” Mr. Bostock said. “Today, we can go to work without the fear of being fired for who we are and who we love.”

Zarda died in 2014 in a wingsuit accident, and Stephens recently succumbed to kidney failure. But their families continued to press their cases through the courts.

Some states already had laws on their books explicitly banning workplace discrimination on the basis of sexual orientation or gender identity, but a majority did not.

In those states, employees turned to the 1964 Civil Rights Act, which largely banned discrimination in cases of race, national origin, religion or sex in schooling, employment, housing and federal assistance programs.

The legislation was heatedly debated in Congress, but there was no indication that those who wrote the law intended for “sex” to include sexual orientation or gender identity. Instead, they saw it in terms of biological differences between men and women.

But Justice Gorsuch said orientation and identity are inherent in sex discrimination.

He said a business that fires a woman who is sexually attracted to women, but doesn’t fire a man who is attracted to women, is engaging in sex discrimination.

“Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing ‘because of sex’ if the employer would have tolerated the same allegiance in a male employee. Likewise here,” Justice Gorsuch wrote.

The dissenters were baffled by that logic. Justice Kavanaugh said the majority was rewriting the 1964 law to its own ends.

“Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result,” he wrote. “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”

The ruling’s implications are massive.

Some activists say it was the last major frontier of sex and sexual orientation battles and could reduce pressure to add an equal rights amendment to the Constitution.

Justice Alito said the ruling could reverberate through ongoing battles over locker room and bathroom policies, health care benefits, housing rules and women’s sports.

Conservatives have argued that those momentous decisions should be left to citizens through their elected representatives.

“Today six judges acting as advocates opted to rewrite the statute themselves, short-circuiting the legislative process and in the process denying the people a decision that should be theirs to make on a major issue,” said Carrie Severino, chief counsel of the conservative Judicial Crisis Network.

Democratic lawmakers, meanwhile, pushed for the Trump administration to change government regulations. One chief target is a rule finalized last week that allows medical providers to refuse to perform treatments to which they have moral objections.

“As we mark LGBTQ Pride Month and celebrate this great legal victory for freedom and equality, we take great pride in how far we’ve come,” said House Speaker Nancy Pelosi, California Democrat. “Now, we must rededicate ourselves to continue marching toward progress to combat the forces of hatred and bigotry that still undermine our communities and our nation.”

⦁ This article is based in part on wire service reports.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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