Justice Samuel Alito, joined by Justice Clarence Thomas, wrote one dissent in which he called the majority’s reasoning “preposterous.”
“There is only one word for what the court has done today: legislation,” Alito said. “… A more brazen abuse of our authority to interpret statutes is hard to recall.”
Even though Justice Brett Kavanaugh dissented, he acknowledged the important legal victory achieved by gay and lesbian employees.
“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Kavanaugh wrote. “They have exhibited extraordinary vision, tenacity and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”
But Kavanaugh said he issued a dissent because he believes it is Congress’ role, not the high court’s, to amend Title VII.
The ruling was the court's first major gay rights decision since the retirement of Justice Anthony Kennedy, who had written the majority opinions in four landmark cases. This included the 2015 ruling that allowed same-sex marriage.
Bostock, 56, said he was at home with his partner when he learned the high court had issued its decision.
“I’m elated and words cannot fully express the gratitude I have for the justices,” Bostock said in a press conference hosted by Georgia Equality.
“I’ve been looking forward to this moment for quite a while and it’s here,” he said. “I’m just thrilled and I’m proud that I’ve been part of this journey and have been able to contribute to this historic moment today.”
Bostock once held what he called a “dream job” as the coordinator of Clayton County’s Court Appointed Special Advocate program. He recruited and trained volunteers who would be assigned to help monitor children kept in foster care, and then passed on their findings to a Juvenile Court judge.
In January 2013, Bostock joined the Honey Badgers of the gay Hotlanta Softball League. From that moment forward, he said, he was the victim of discrimination until he was fired from his position about six months later.
The county has said Bostock was terminated because an audit showed he misspent court funds at restaurants. Bostock has denied any wrongdoing.
In his majority opinion, Gorsuch wrote that when Congress enacted Title VII, it adopted broad language that made it illegal for an employer to fire employees based on their sex.
“We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law,” Gorsuch said.
“There is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex,” Gorsuch added. “By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”
Ruling Has Limits
The high court's decision overturned a ruling by the 11th U.S. Circuit Court of Appeals in Atlanta, which declined to revive Bostock's lawsuit in 2018.
Bostock’s case now returns to federal court, where he will litigate his claim that Clayton County discriminated against him because of his sexual orientation. He is seeking reinstatement of his prior position, the wages he’s lost since he was fired, and other damages.
The Supreme Court heard Bostock’s appeal combined with another involving Donald Zarda, a skydiving instructor from Long Island, N.Y. Zarda, who died two years ago, contended he also was fired because he’d come out as gay.
In February 2018, the federal appeals court in New York ruled in Zarda’s favor, triggering an appeal from his former company and allowing the high court to hear his case as well. (Zarda’s sister and his former partner have continued his lawsuit on behalf of his estate.)
Separately, the high court ruled in favor of the late Aimee Stephens, a transgender woman who was fired from her job at a Michigan funeral home after telling her boss she was transitioning from male to female. The 59-year-old Stephens died last month after a long battle with kidney disease, and her estate inherited her suit against the funeral home.
Employers will likely worry about how the ruling affects other litigation addressing the rights of gay and transgender people, Gorsuch said.
“Under Title VII itself, they say sex-segregated bathrooms, locker rooms and dress codes will prove unsustainable after our decision today,” Gorsuch said. “But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”
Georgia is one of a handful of states without comprehensive civil rights laws that protect gay and transgender people, said Sean Young, legal director of the American Civil Liberties Union of Georgia. That means the high court’s ruling does not extend to everyone because small businesses with fewer than 15 people are not covered by federal anti-discrimination employment law, he said.
Jeff Graham, executive director of Georgia Equality, called on the General Assembly to consider a civil rights law in the 2021 session that safeguards all protected classes of people from discrimination. “Now is the time for Georgia to add that to the list of laws that need to be passed,” he said.