It is wrong to fire someone simply because they are gay, bisexual or transgender, but until Monday’s landmark U.S. Supreme Court decision, it wasn’t clear if it was illegal. The court correctly left no doubt that it is.
In a surprising 6-3 decision, the court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, religion, national origin and sex, includes gay and transgender workers.
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Justice Neil Gorsuch, President Donald Trump’s first appointee, wrote for the majority. “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.”
Chief Justice John Roberts joined Gorsuch and the court’s liberal wing — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — in the majority.
Gorsuch is a “textualist,” which means he interprets the Constitution and the law by relying on the literal or plain meaning of a text — no more, no less. Textualists don’t look at the debate surrounding the drafting of a law but rather what it says in plain English. In fact, Gorsuch wrote that Congress in 1964 might not have expected “this particular result,” but “likely, they weren’t thinking about many of the act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation. The other was a case on transgender rights brought by a woman who said she was fired after telling the owners of the funeral home where she worked that she was a transgender woman and would start working in women’s clothing.
Gorsuch made clear that the court’s ruling is narrow, writing: “We do not purport to address bathrooms, locker rooms or anything else of the kind. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”
In a blistering dissent, Justice Samuel Alito wrote that there “is only one word for what the Court has done today: legislation.” He went on to say if Congress meant what Gorsuch claims the law says, then Congress should have passed legislation to say so. He went so far as to note that the House indeed passed such a bill last year, but it stalled in the Senate. But the point Alito misses is that Gorsuch was considering the law actually on the books, not one that never made it to the president’s desk. A good textualist knows that the actual words of the law are what matters.
The Florida Legislature’s leadership, with its weak record on LGBTQ rights, should take the court’s decision as a wake-up call. The Legislature should pass the Competitive Workforce Act, first introduced more than a decade ago. It would prohibit discrimination against LGBTQ Floridians on housing and public accommodations, not just on employment. It is not only the right thing to do. It is the smart thing to do. An overwhelming percentage of Americans believe that LGBTQ rights deserve protection, and Florida — which touts itself as business friendly — would become more so by clearly opening itself to LGBTQ workers and the companies that would employ them. Gov. Ron DeSantis could make it simple: He could sign an executive order to accomplish the same thing.
Monday’s ruling brought two important reminders. First, the court, while “conservative,” doesn’t always rule in a “conservative” way. Chief Justice Roberts once likened the justices’ role to umpires’ — to call ball and strikes, not to make the rules. Monday’s decision is a good example. Second, as Gorsuch’s majority opinion makes clear, LGBTQ rights took an important step forward Monday, but only about employment practices — hiring and firing. There is still much work to do.
Editorials are the institutional voice of the Tampa Bay Times. The members of the Editorial Board are Times Chairman and CEO Paul Tash, Editor of Editorials Graham Brink, and editorial writers Elizabeth Djinis, John Hill and Jim Verhulst. Follow @TBTimes_Opinion on Twitter for more opinion news