Photo Credit: Jeff Kubina (CC-By-SA 2.0)

DES MOINES, Iowa – What LGBT activists could not accomplish through the legislative process, they achieve through the Supreme Court.

Congress has rebuffed attempts to add “sexual orientation” and “gender identity” as protected classes under federal anti-discrimination law. The Supreme Court ruled 6 to 3 that federal employment anti-discrimination law (Title VII) does protect LGBT persons.

Chief Justice John Roberts and Justice Neil Gorsuch joined the court’s liberal wing – Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor ruled for the change. Justices Samuel Alito, Clarance Thomas, and Brett Kavanaugh ruled against the change.

Gorsuch writing for the majority claims that discrimination against an individual employee or applicant based on sexual orientation or gender identity is the same as discriminating against someone based on one’s biological sex.

Title VII prohibits discrimination in employment practices based on race, color, religion, sex, and national origin.

“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 wrote.

He dismissed arguments that sexual orientation and gender identity are not what Congress had in mind when they passed Title VII as part of the Civil Rights Act of 1964.

“But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit,” Gorsuch argued.

“An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” he explained.

Alito wrote a scathing dissent to the majority opinion and was joined by Thomas.

“There is only one word for what the Court has done today: legislation,” he wrote.

Alito noted that for the last 45 years, multiple attempts to add sexual orientation and gender identity to federal non-discrimination law has failed. He also stated that before 2017, 30 out of 30 appellate judges had not interpreted Title VII prohibition against sexual discrimination as anything other than discrimination based on biological sex. Also, Alito noted that the Equal Employment Opportunity Commission failed to see what the majority called “obvious” in their 48 years ruling on Title VII. He said because Congress has not passed and the President has not signed any amendment to Title VII, the prohibition against discrimination based on sex remains the same.

“But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s (the Equality Act) provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall,” he argued.

“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’ And in any event, our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written,'” Alito argued.

He said no one should be fooled by Gorsuch’s claims of adopting the late Justice Antonin Scalia’s textualist approach, interpreting the word “sex.”

“The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society,” Alito countered.

“By proclaiming that sexual orientation and gender identity are ‘not relevant to employment decisions,’ the Court updates Title VII to reflect what it regards as 2020 values,” he wrote.

Alito warned the Supreme Court’s decision could have “far-reaching consequences” and their refusal to consider those consequences is “irresponsible. He noted the precedent this ruling sets will impact all federal anti-discrimination law.

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

Conservative groups responded to the majority decision. 

“Americans must be able to rely on what the law says, and it is disappointing that a majority of the justices were unwilling to affirm that commonsense principle. Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts. Civil rights laws that use the word ‘sex’ were put in place 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,” John Bursch, Alliance Defending Freedom Vice President of Appellate Advocacy, said.

“Judicial activism wins again. That is the only way to describe the Supreme Court’s terrible decision today. For decades, going back at least to Roe v. Wade, the Court has often seized from Congress the power to make law rather than sticking to its Constitutional duty to interpret it. Unfortunately, today’s ruling may represent its most reckless power grab yet,” Terry Schilling, executive director of American Principles Project, said responding to the ruling.

“While the Court majority may claim that its decision today only applies to employment decisions, the reality is that it will have a monumental effect on all of American society. Will women’s sports leagues now have to admit any male athlete who identifies as a female? Will private spaces for women — such as bathrooms, locker rooms, and even battered women’s shelters — now be found to violate federal law as well? All these issues and more are now up for grabs,” he added.

“We are grateful that the Supreme Court was clear in the opinion that this federal statute does not overrule peoples’ religious freedoms. We will find out in the very near future, whether this is a hollow promise or a truthful assurance that the religious liberty of all Americans will be protected,” Kelly Shackelford, President, CEO, and Chief Counsel at First Liberty Institute, said.

Read the majority opinion and both dissenting opinions below:

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