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Supreme Court Rules LGBTQ Workers Protected Against Sex Discrimination


A ruling in the U.S. Supreme Court today turned largely on the definition of a single phrase - federal civil rights law bans discrimination on the basis of sex. The court majority holds that by that law, by definition, employers cannot fire people for being gay or transgender. This was a fiercely contested ruling. One of President Trump's appointees to the court wrote the majority opinion. The other of President Trump's nominees to the court wrote an extended dissent.

Joining us now to discuss all this is NPR legal affairs correspondent Nina Totenberg. Nina, good morning.


INSKEEP: OK. So what was this decision about? And what does it do?

TOTENBERG: Well, it's always easier to describe these cases by understanding a little bit about the facts of the cases.


TOTENBERG: So here we have several people, gay and transgender individuals, who were fired or alleged that they were fired from their jobs because of their sexual preference or because of their sexual status, in the case of the transgender employee. One of them was a guy named Bostock - I can't remember his first name at the moment - who was the Clayton County, Ga., social services coordinator for foster children, had great evaluations. But when it turned out that he was playing on a gay softball team, he says he was fired because of that.

The other major person in this case was Aimee Stephens, who is now deceased, who had worked for the Harris Funeral Homes in Livonia, Mich., for six years when she decided she wanted to come out as a transgender person in transition. And when she did that, she did it by sending a letter and meeting with her boss and sending a letter to her colleagues. And she was fired two weeks later.

And the Supreme Court said that the Civil Rights Act of 1964, which bars discrimination based on race, religion and sex applies here and that that is illegal under the federal anti-discrimination law, which is a very, very big deal.

INSKEEP: A big deal. I'd heard about this case in the past because I listen to NPR, so I hear Nina Totenberg from time to time. And you've talked about this, about how that word sex - that is what you're not supposed to discriminate on the basis of. And the question here, both for the people who ruled in the majority and the minority, was - does being fired for being gay, for example, count as a discrimination against you on the basis of sex? And the majority says yes, right?

TOTENBERG: The majority says the ordinary public meaning at the time of the enactment of this statute is that sex means sex. It refers to biological distinctions between male and female. And the ordinary meaning of because of is on a count of. That means that these businesses cannot avoid liability just by citing some other factor, such as, for example, that it might be difficult for customers to accept this. They can't - that's not good enough. And the court goes on to cite a number of its major precedents that require that result.

So it says that these terms generate the following rule - an employer violates Title VII - that's the employment provision - when it intentionally fires an individual employee based in part on sex. It makes no difference if there are other factors besides the plaintiff's sex contributed to the decision or that the employer treated women as a group, for example, as opposed to men as a group. The statutory violation occurs if the employer intentionally relied, even in part, on an individual employee's sex when deciding to discharge that employee. And...

INSKEEP: And we'll just...

TOTENBERG: ...Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat the individual employee differently because of their sex, an employer who intentionally penalizes that employee for being homosexual or transgender also violates the federal civil rights law.

INSKEEP: And we'll just summarize very briefly the dissents here, which I've been looking at. Essentially, they argue on the definition here that on the basis of sex does not include someone who was fired for being gay or someone who was fired for being transgender. They argue that that is a different matter, although the majority finds that it is the same. Now, how interesting is it, Nina Totenberg, who wrote the majority decision - that it is Neil Gorsuch, that it's an appointee of President Trump, who wrote this majority decision?

TOTENBERG: It's very, very interesting. But it's also interesting who joined him. Who joined him were not only the court's four liberals but also Chief Justice John Roberts. So this is a 6-3 decision with a - something like a hundred-page dissent from, among others, Justice Kavanaugh, the other Trump appointee, and Justices Alito and Clarence Thomas. So you know, at 11:07 Eastern time in the morning, we don't - we haven't read the hundred pages. And I guess I should be candid in saying that the court had a bit of trouble this morning posting this opinion...

INSKEEP: That is true.

TOTENBERG: ...I think because it was so long.

INSKEEP: Yes. So there's a lot more arguing to be had here, but a significant, significant decision for gay and transgender rights. Nina, thanks very much.

TOTENBERG: You're welcome.

INSKEEP: NPR's Nina Totenberg. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.