Justices Neil Gorsuch and John Roberts may never admit it, but with the Supreme Court’s ruling that the law bans discrimination against gay and transgender workers, they rejected the pitting of historically marginalized groups against each other.
Six justices of the Supreme Court, including Republican appointees John Roberts and Neil Gorsuch, declared today that facts don’t care about employers’ feelings: It’s illegal to fire someone because of their sexual orientation or gender identity. “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,” wrote Gorsuch, who was also joined by all four Democratic appointees. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” he continued, meaning the provision of the 1964 Civil Rights Act that barred discrimination in employment “because of sex.”
In theory, the justices reached this conclusion on what Gorsuch called “no more than the straightforward application of legal terms with plain and settled meanings.” It was not enough for employers to say they were motivated by something other than sex when they fired someone, or that they treated gay men and women or transgender men and women equally poorly, he wrote; that was still illegal sex discrimination. “Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view,” Gorsuch put it dryly.
But for an opinion that happened to be issued a day after an estimated 15,000 people marched in New York to say black trans lives matter, and just a couple days after the Trump administration issued new rules discriminating against LGBT and abortion patients, there was more at stake than which school of constitutional interpretation carried the day or the words on paper.
