Supreme Court Rules Title VII Bars Discrimination Against Gay and Transgender Employees: Potential Implications

Supreme Court Rules Title VII Bars Discrimination Against Gay and Transgender Employees: Potential Implications

Legal Sidebari

Supreme Court Rules Title VII Bars
Discrimination Against Gay and Transgender
Employees: Potential Implications
June 17, 2020
On June 15, 2020, the Supreme Court issued a decision in a series of cases brought by gay and
transgender workers alleging that their employers violated Title VII of the Civil Rights Act of 1964 (Title
VII) by discriminating against them “because of . . . sex.” The Court held 6-3 in Bostock v. Clayton
County, Georgia that Title VII forbids employers from firing an individual for being gay or transgender.
The Court’s decision in Bostock was consolidated with two other cases, Altitude Express, Inc. v. Zarda
and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. (An earlier Sidebar addresses lower court
decisions in these cases and provides further background on Title VII.)
This Sidebar explains the Court’s holding in Bostock and highlights some potential implications of the
decision for other areas of the law, including the “bona fide occupational qualification” (BFOQ)
exception in Title VII; constitutional exceptions and religious-based exemptions to Title VII; various
aspects of Title IX of the Education Amendments of 1972 (Title IX); and statutes that incorporate Title
IX’s requirements, such as the Affordable Care Act.
Background on Title VII
Title VII prohibits employment discrimination on several different bases, including by barring covered
employees from discriminating against any individuals “because of . . . sex.” The statute does not
explicitly address whether that prohibition applies to sexual orientation or gender identity. In Price-
Waterhouse v. Hopkins, a four-Justice plurality recognized that discriminating against individuals based
on a failure to conform to stereotypes about how men or women should behave is unlawful discrimination
under Title VII. Whether Title VII prohibits discrimination based on sexual orientation or gender identity
has split lower federal courts.
Supreme Court’s Decision
Bostock represents the Court’s decision for three consolidated cases. Originally, the Court granted
certiorari in the consolidated cases of Bostock and Altitude Express on whether discrimination based on
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sexual orientation amounts to discrimination because of sex under Title VII. The Court also granted the
petition for certiorari in Harris Funeral Homes, which raised two related questions: whether Title VII
prohibits discrimination against transgender individuals based on (1) their status as transgender; or (2) sex
stereotyping under Price Waterhouse. The final decision in Bostock consolidates all of these cases in a
majority opinion written by Justice Gorsuch. Justice Alito, joined by Justice Thomas, issued a dissenting
opinion; and Justice Kavanaugh issued a separate dissent.
Majority Opinion
Justice Gorsuch’s majority opinion focused on the ordinary public meaning of Title VII. Irrespective of
what the drafters of Title VII may have intended or anticipated, the majority concluded that the plain
meaning of Title VII’s prohibition of discrimination “because of” sex extends to discrimination based on
sexual orientation or gender identity. That language, the Court explained, incorporates the “but-for”
standard of causation: if an outcome would not have occurred “but-for” the purported cause, causation is
established. There can be multiple but-for causes of the same event. The majority opinion gave an
example: if a car crash occurred both because a defendant ran a red light and because a plaintiff failed to
signal, both are but-for causes. Under Title VII, as long as sex is one thing that did cause discrimination, it
counts. In other words, when testing whether discrimination occurred because of sex, the Court
hypothetically “change[s] one thing at a time [to] see if the outcome changes.” If so, the Court has “found
a but-for cause.” It doesn’t matter, the Court explained, if an employer also considered factors other than
sex. (It bears mention that the Court has applied a different causation standard for Title VII cases in the
past; and the majority opinion notes that Congress amended the statute to provide an alternative
“motivating factor” standard. Applying that standard, liability can sometimes attach “even if sex wasn’t a
but-for cause of the employer’s challenged decision,” but the Bostock majority believed it unnecessary to
resolve the case under this more lenient standard for establishing liability.)
The Court emphasized that Title VII’s prohibition against discrimination is focused on individuals, rather
than different treatment across groups. That is, the law prohibits discrimination against an individual
employee even if an “employer treated women as a group the same when compared to men as a group.”
The focus on individuals means an employer cannot successfully defend its discrimination because both
sexes were subject to the same discriminatory policy.
Applying that analysis to discrimination based on sexual orientation or gender identity, the Court ruled
that singling out an employee on either basis constituted discrimination based on sex in violation of Title
VII. The Court reasoned that it is impossible to act on either basis without considering sex. As an
example, the Court pointed to a situation where two employees, a man and a woman, are attracted to men.
If an employer fires the man for being attracted to men, but not the woman who is also attracted to men,
the employer discriminates against him for traits the employer tolerates for a woman. The employee is
singled out in part because of his sex—a but-for cause of the discrimination. Likewise, the Court noted, if
an employer fires a transgender man (assigned female gender at birth who now identifies as a man) for
being transgender, the employer penalizes that person for being assigned the female gender at birth for
traits that it would tolerate in a person assigned the male gender at birth.
The majority opinion, while acknowledging the potential implications of the Court’s decision for other
areas of the law, such as other statutes that prohibit discrimination based on sex, as well as religious
liberty under the Constitution, declined to examine the application of its reasoning to circumstances
outside the cases before it.
Dissenting Opinions
Justice Alito’s dissenting opinion claimed that the majority was creating legislation through the guise of a
judicial decision. He argued that virtually no one in 1964 would have understood the statute to prohibit

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discrimination on these bases. He highlighted arenas in which the Court’s reasoning would have “far-
reaching consequences”; for Justice Alito, whether Title VII bars discrimination based on sexual
orientation and gender identity should be the product of legislative deliberation, rather than judicial
construction. He argued, among other things, that the Court’s holding will “threaten freedom of religion,
freedom of speech, and personal privacy and safety.” Justice Kavanaugh’s dissent similarly criticized the
majority opinion for judicially amending the text of Title VII. He contended that the majority relied on a
“literalist” reading of the statute, an approach that conflicted with the ordinary meaning of “discriminate
because of sex,” which Justice Kavanaugh argued was not commonly understood to encompass
discrimination related to sexual orientation or gender identity.
Potential Implications of Bostock
In responding to the dissenting opinion of Justice Alito, the majority opinion seemed to acknowledge that
its decision could have implications for other statutory and constitutional provisions, but noted that those
were “questions for future cases.” As noted by Justice Alito’s dissent, the reasoning of Bostock may raise
questions in such future cases under various legal doctrines and statutory provisions. While not
exhaustive, the following areas might see such developments. First, courts have already wrestled with the
circumstances in which sex is a BFOQ necessary to the operations of a business; they may now need to
determine how Bostock applies in those circumstances. Second, courts have examined the interaction
between Title VII’s requirements and its religious exemptions, as well as with religious liberty claims
under the Constitution; courts will likely be asked to apply Bostock in those same situations. Finally,
because Title VII and Title IX both prohibit discrimination because of sex, courts often draw on Title VII
to interpret Title IX; courts will now be asked whether Bostock demands that discrimination based on
sexual orientation and gender identity also violates Title IX, as well as statutes that incorporate Title IX’s
provisions.
Bona Fide Occupational Qualification (BFOQ)
Title VII contains an exception permitting sex discrimination when sex is a “bona fide occupational
qualification reasonably necessary to the normal operation” of employment. Generally this means that
employers may, in narrow circumstances, make employment decisions based on an individual’s sex when
the “essence” of a job would be undermined by hiring members of both sexes. This exception, courts have
ruled, “reaches only special situations.” For example, the Supreme Court has ruled that requiring prison
guards at a maximum-security men’s prison to be male is a policy that falls under the BFOQ exception,
because hiring women could create a security problem linked to their sex. Likewise, some courts have
reached the analogous conclusion for women’s prisons, deciding that requiring guards to be women in
that situation is a BFOQ. In a recent case, one appellate court looked to therapeutic and privacy concerns
to conclude that sex-based considerations in staffing decisions made at a mental health facility for minors
could fall within the BFOQ exception.
The Court’s reasoning in Bostock may have implications for how future courts construe Title VII’s BFOQ
exception. Although the Court did not address how its reasoning might affect that provision, based on
Bostock’s holding, transgender employees may bring a Title VII claim alleging that a certain practice or
policy discriminates based on gender identity. How this narrow exception to Title VII would apply to
claims brought by transgender employees is difficult to predict given the range of employee positions, but
application of Bostock may present novel questions of interpretation for Title VII’s BFOQ exception.
Religious Exemptions
The Court’s decision may also implicate Title VII’s provisions and other legal doctrines that permit
religious institutions to make employment decisions on religious grounds. Justice Alito’s dissent argued

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that the Court’s holding would “threaten freedom of religion” by forcing religious employers to hire
employees whose conduct offends their religious teachings. In response, the majority opinion noted
several protections religious entities have against such claims, including in Title VII itself, the First
Amendment, and the Religious Freedom Restoration Act (RFRA). Generally, the Court in recent terms
has expanded legal protections for religious entities. Some of these protections, discussed in more detail
below, could limit the reach of Bostock in certain employment decisions.
Aiming to balance the statute’s prohibitions with the protections of the First Amendment, for example,
Congress provided in Title VII itself that religious entities could sometimes make employment decisions
based on an individual’s religion. The Court’s holding in Bostock necessarily allows employees to bring
Title VII claims alleging discrimination based on sexual orientation or gender identity, including against
employers that may qualify for a religious-based exemption under Title VII. These claims might thus raise
new questions or issues about how Title VII’s religious-based exemptions should be interpreted and
applied. Though the full range of these provisions is beyond the scope of this Sidebar, courts have
differed in their application and understanding of these Title VII exemptions, and it seems likely that the
courts will need to determine how those exemptions apply to antidiscrimination claims related to sexual
orientation or gender identity post-Bostock.
Religious organizations might also claim that other legal doctrines shield them from complying with Title
VII. The First Amendment-derived “ministerial exception,” for instance, permits churches to make
employment decisions about their ministers even if those decisions would otherwise violate civil rights
laws. A case addressing the scope of this exception, about who qualifies as a “minister,” is pending before
the Court. Some religious entities may claim that the ministerial exception applies to employment
decisions regarding certain gay or transgender employees.
Finally, entities may have a defense in Title VII suits through the RFRA in certain contexts. RFRA
prohibits government actions—including rules of general applicability—from substantially burdening
someone’s exercise of religion unless the government shows that applying the burden (1) furthers a
compelling government interest; and (2) is the least restrictive means of doing so. Justice Gorsuch’s
majority opinion in Bostock described RFRA as a “super-statute” that displaces other federal laws and
noted that it might sometimes supersede Title VII’s requirements.
Title IX: Athletics and Related Statutes
Outside the Title VII context, the Court’s consolidated decisions in Bostock may potentially have
important consequences for the proper interpretation of Title IX, which prohibits discrimination based on
sex in education programs that receive federal financial assistance. Such implications are likely given that
Title IX, like Title VII, contains a similarly phrased prohibition; and courts have already debated whether
Title IX does or does not reach discrimination based on gender identity. Indeed, given the substantial
similarity between the two statutes, courts often rely on Title VII to inform their interpretation of Title IX.
Now that Bostock has determined that discrimination based on sexual orientation or gender identity
constitutes discrimination because of sex under Title VII, courts might apply that reasoning to Title IX.
And certain other statutes incorporate Title IX’s prohibitions, such as the Affordable Care Act (ACA),
which prohibits discrimination in federally funded health programs on a basis prohibited by Title IX.
Accordingly, Bostock’s reasoning may also affect interpretations of that statute.
One developing issue arising directly under Title IX concerns the statute’s athletic requirements for
transgender athletes. The Department of Education’s implementing regulations for Title IX contain
requirements that schools receiving federal funding must follow in their athletics programs. While
covered schools may field separate teams for males and females, they may not, on the basis of sex, deny
benefits or treat students differently in athletics. Even before Bostock, applying these requirements for
transgender students generated disagreement. The reasoning of Bostock seems likely to be cited by those

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seeking to challenge policies that prohibit transgender athletes from participating on sports teams
consistent with their gender identity; courts will likewise face balancing these claims against the
competing interests of students who argue that doing so prevents them from obtaining the equal athletic
opportunities required by Title IX’s regulations.
Considerations for Congress
While the Court’s decision in Bostock will assuredly have important results for employees and employers
nationwide, the majority opinion’s analysis rested on the text of Title VII. Congress may amend the law if
it disagrees with the Court’s decision. In the past, Congress has sometimes responded to judicial decisions
interpreting Title VII by amending the text of the statute. For instance, when the Court held in General
Electric Co. v. Gilbert that Title VII did not prohibit discrimination based on pregnancy, Congress
amended Title VII to do so.
Likewise, Congress may modify provisions in other statutes addressing sex discrimination, such as Title
IX or the ACA, including to clarify whether, post-Bostock, these statutes should be understood to apply to
discrimination on the basis of sexual orientation or transgender status. Options might include supplying
an explicit definition of what discrimination “because of … sex” means or otherwise modifying their
scope.

Author Information

Jared P. Cole

Legislative Attorney

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