On June 15, the Supreme Court of the United States ruled, in a 6-3 decision, that federal law prohibits employment discrimination based on sexual orientation or transgender status. The lawsuits in question involved two separate sets of cases where employers fired people for those two reasons.
“This is the first time the Court has recognized both sexual orientation and gender identity as characteristics protected under Title VII,” Lindsey W. Davis and Brenna M. Wildt, two employment attorneys from the law firm Quarles & Brady, wrote. They added that this confirms multiple opinions from lower courts as well as Equal Employment Opportunity Commission (EEOC) guidance “since at least 2015.”
The impact of this decision on higher education is potentially profound. Professors and administrative staff who fall into this newly protected category have long kept their personal lives to themselves for fear of being ostracized, retaliated against, blocked from work opportunities or, in the worst cases, fired. This ruling creates a nationwide standard that provides far greater protection than the collection of state laws and whatever moral inclinations employers may have to hire, support, and promote LGBTQ employees.
This Supreme Court ruling is a “is a profoundly important decision” which represents a “step toward unraveling the sex binary (the notion that there are exactly two distinct sexes that match two distinct genders),” Sara Collina, professor of Women and Gender Studies at Georgetown and lead instructor for the Title IX for a New Generation course, said in an email to CNDLS. “Georgetown already has anti-discrimination policies in place and DC also has its own protections, but this ruling is the one-word answer to whether an employer can consider sexual orientation or gender identity in any employment decision.
“The answer is no.”
The decision also “signaled to colleges that they must ensure the fair treatment of transgender students playing campus sports and living in residence halls,” Greta Anderson of Inside Higher Ed wrote. Ultimately, university leaders will need to revise their employment policies as well as policies for student conduct and access to resources.
As Anderson and others have noted, the decision also carries Title IX implications. Melissa M. Carleton, a partner at Bricker & Eckler, summed it up well: “the courts often look to the definition of ‘sex’ as used in Title VII to inform how to interpret other statutes—including Title IX of the Education Amendments Act of 1972, which prohibits educational entities from discriminating on the basis of sex.”
“This ruling is a bit of good news for our bedraggled Title IX,” Collina said, “since Trumps’ recently issued regulations mostly just further discourage people who have been sexually harmed from seeking justice. The Bostock ruling will likely make it easier for trans and nonbinary people to be treated with the same with dignity and respect as their classmates.”
While this ruling certainly comes as good news to many, it will also likely cause the legal system to further test Title IX in the future.
“Title IX has a LOT of exceptions (check it out sometime, did you know that father-daughter dances are federally protected?),” Collina said. “I’m sure there will be more lawsuits to come focusing on what ‘because of sex’ means in the context of Title IX, and what exceptions are reasonable.”