US Supreme Court rules for gay and transgender rights in the workplace

Two conservative judges side with the court’s liberals to rule that federal laws protect gay and transgender employees.

Joseph Fons holding a Pride Flag, stands in front of the US Supreme Court building after the court ruled that LGBTQ people can not be disciplined or fired based on their sexual orientation.

The US Supreme Court has ruled that federal anti-discrimination laws protect gay and transgender employees in a landmark gay rights ruling which saw two conservative judges side with the court’s liberals.

The 6-to-3 ruling was a loss for judicial conservatives and a surprise to many progressives who had feared that the court’s 5-to-4 conservative majority since 2018 would lead it to make uniformly conservative rulings.

The majority ruling was led by Justice Neil Gorsuch, one of Donald Trump’s conservative appointments and also by the conservative Chief Justice John Roberts.

They argued that Title VII of the Civil Rights Act of 1964 which makes it illegal to discriminate “because of sex’’ should also be taken to include LGBTQ employees, even if they were not specifically mentioned in the 1964 Act.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Justice Gorsuch wrote. “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.”

President Donald Trump shakes hands with Judge Neil Gorsuch.

The ruling will have a major impact on the estimated 8.1 million LGBT workers because 29 of the 50 US states, many of them conservative southern states, do not have laws preventing discrimination based on sexual orientation or gender identity.

“This is a huge victory for LGBTQ equality,” said James Esseks of the American Civil Liberties Union. ‘The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law.”

In their dissenting decision, the three conservative judges said the court’s majority decision was wrong because it was akin to creating law.

“There is only one word for what the Court has done today: legislation,’’ said Justice Samuel Alito in a dissenting decision joined by Justice Clarence Thomas.

“ ‘Sex,’ ‘sexual orientation,’ and ‘gender identity,’ are different concepts,” Justice Alito wrote.

He said that during debates in the 1960s about the Civil Right’s Act, no member of Congress “said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex.’’

Justice Brett Kavanaugh, who was appointed to the court in 2018, giving it a conservative majority, said the Civil Rights Act should not be interpreted as invoking protections for LGBTQ employees.

“Courts must follow ordinary meaning, not literal meaning,” he wrote. “Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation? The answer is plainly no.”

“Seneca Falls was not Stonewall,” he wrote. “The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

A memorial stands outside of the historic LGBT bar The Stonewall Inn to the victims of the Pulse night club shooting in Manhattan's West Village.

However Justice Kavanaugh, despite arguing against the ruling, said LGBTQ workers could take pride in the result.

“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Justice Kavanaugh wrote. “They have advanced powerful policy arguments and can take pride in today’s result.”

The case was the first major LGBTQ decision by the court since Justice Kavanaugh replaced Justice Anthony Kennedy who was the author of the 2015 ruling that made same-sex marriage legal in the US.

The court considered two cases where gay men were fired because of their sexual orientation. The first was a skydiving instructor Donald Zarda who was fired after he told a woman that he was gay in order to reassure her during a tandem dive.

The second was Gerald Bostock who was fired from a government job helping neglected and abused children after he joined a gay softball league.

(Cameron Stewart is also US contributor For Sky News Australia)