These plaintiffs argue that their firings were illegal under Title VII of the 1964 Civil Rights Act, which restricts most employers from discriminating against workers based on “race, color, religion, sex, or national origin.” Firing someone because he is gay or she is transgender, they argue, is a form of sex discrimination. “Because an employee’s sex is a necessary element of his sexual orientation, a decision because of the latter is also a decision because of the former,” Mr. Bostock’s lawyers argue.
The defendants and their supporters — including the Trump administration — retort that Congress did not have gay, lesbian, bisexual or transgender people in mind when it passed the Civil Rights Act a half-century ago. Indeed, lawmakers have considered and failed to pass updates to Title VII that would clearly extend employment protections to LGBT people.
True. But the court already has found that Title VII bars firing a woman not only because an employer does not believe women should be working, but also “reasonably comparable evils,” as Justice Antonin Scalia wrote in 1998. So, according to the court, employers cannot discriminate against women because they fail to fulfill gender stereotypes — fail to wear makeup or jewelry, wear “mannish” clothing or otherwise sport a “masculine” look.
As the U.S. Court of Appeals for the 7th Circuit argued as it considered Title VII, “all gay, lesbian and bisexual persons fail to comply with the sine qua non of gender stereotypes — that all men should form intimate relationships only with women, and all women should form intimate relationships only with men.” Ms. Stephens asks the court to apply the same reasoning to transgender individuals who fail to conform to their employers’ “views of how men and women should identify, look, and act.” The plaintiffs are asking for a logical extension of what the court has already said. The defendants’ case rests on persuading the court that its reasoning has been faulty for decades.
That said, nothing the court does or declines to do affects Congress’s responsibility. If lawmakers finally approved explicit employment protections for LGBT people, the extension of those protections would gain more democratic legitimacy. And people such as Mr. Bostock, Ms. Stephens and Mr. Zarda would not have to worry that their livelihoods depend on the Supreme Court’s pronouncements.