The U.S. Supreme Court issued a watershed decision on gay and transgender rights June 15 by finding that longstanding, non-discrimination protections in federal workplace law cover “sexual orientation” and “gender identity.”
The justices ruled in a 6-3 opinion that the category “sex” in Title VII of the 1964 Civil Rights Act applies to homosexual and transgender employees. Chief Justice John Roberts and Associate Justice Neil Gorsuch — typically among the high court’s more conservative members — joined the four-member liberal wing in the majority. Associate Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented.
Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, and others disturbed by the decision expressed concerns about its impact on religious freedom and the meaning of words in laws.
The opinion “will have seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality,” Moore wrote.
The decision’s precedents “will mean that legislators actually won’t know what they are voting to pass — because words might change cultural meaning dramatically between the time of passage and some future court case,” he said.
John Bursch, vice president of appellate advocacy for Alliance Defending Freedom, said in a written release the inclusion of “sex” in civil rights laws was “to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities — the ones the law was designed to protect.”
The Supreme Court’s ruling, however, “should hardly be surprising, given how much has changed culturally on the meanings of sex and sexuality,” Moore wrote. “That the ‘sexual revolution’ is supported here by both ‘conservatives’ and ‘progressives’ on the court should also be of little surprise to those who have watched developments in each of these ideological corners of American life.”
Writing for the majority, Gorsuch — one of two nominees by President Trump on the court — said, “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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Gorsuch acknowledged the congressional members who supported Title VII 56 years ago might not have expected the court’s ruling, but he said “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
An employer who fires a male employee for an attraction to men while tolerating it in a female worker is guilty of discrimination, Gorsuch said. The male worker’s “sex plays an unmistakable and impermissible role in the discharge decision,” he wrote.
Alito took issue with the court’s opinion, describing it as “legislation” instead of a “judicial opinion.”
“A more brazen abuse of our authority to interpret statutes is hard to recall,” Alito wrote. “The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.
“[T]he question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
Congress has repeatedly considered legislation to include civil rights protections for “sexual orientation” and “gender identity” but has failed to do so, Alito wrote. Last year, the House passed the Equality Act, which would have protected both classifications, but the Senate has not acted on it.
— Tom Strode is Washington bureau chief for Baptist Press.