US Supreme Court Recognizes Employment Rights Based on Same-Sex and Gender Identity Status

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The Supreme Court of the United States announced its 6-3 decision today affirming that Title VII protects employees from discrimination on the basis of sex, and that basis includes sexual orientation and gender identity.

The Court addressed three consolidated cases in which each of the complainants was terminated shortly after their same-sex orientation or transgender status became known.    The lead opinion by Justice Gorsuch relied on textual analysis of the statute, asserting that there was no need to consider whether Congress meant to include these specific protections in 1964 because the text of the statute clearly outlawed discrimination “on the basis of sex.”  Justice Gorsuch explained that such a prohibition included sexual orientation and transgender status because if a man announced he had married a man, and a woman announced that she had also married a man, terminating the man who married a man would be “because of sex.”  Both employees had engaged in the same action but only the man is terminated because he is a man who engaged in the action.

For Washington employers, this may seem to have little practical application because the Washington Law Against Discrimination already protects against employment discrimination on the basis of sexual orientation or gender identity status.  It does, however, provide another avenue to transfer matters into federal court.

Justice Gorsuch stated clearly that the religious rights secured under the United States Constitution and the already recognized “ministerial exception” to Title VII would protect religious entities from discrimination claims that would violate their religious faith.  This is not a surprise.  But more importantly, Justice Gorsuch pointed out that there could well be cases where the rights granted under Title VII are in conflict with the rights under the Religious Freedom Restoration Act (RFRA) and that RFRA acts as a “super statute” that might supersede the commands of Title VII “in appropriate cases.”    None of the concurring justices provided an opinion that stated disagreement with this premise.  That is, the door is wide open for an employer to argue, perhaps successfully, that forcing the employer to employ a transgender person, or person of same-sex orientation, would violate that employer’s right to free exercise of religion and religious liberty.  We should not be surprised to see such challenges move forward in the near future.

About the Authors

Karen Kalzer

Ms. Kalzer practices employment and education law with an emphasis on defending complex litigation for communities of faith, non-profits, schools and private employers.

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