Aimee Stephens

Aimee Stephens, who died in May, is a trans heroine. Her case in the Supreme Court of the US shows that discrimination on the ground of sexual orientation or gender identity is discrimination on the ground of sex, which is unlawful under Title VII of the Civil Rights Act of 1964. Why that is, might be a surprising argument for a British lawyer, beautiful in its simplicity. The Court’s judgment, of a majority of six (Alito, Thomas, Kavanaugh dissenting) was written by Neil Gorsuch.

Aimee Stephens was fired by RG & GR Harris Funeral Homes after she announced she intended to transition, and come to work in a conservative skirt suit or dress. Her employer claimed it would violate “God’s commands” to allow her to state she is female or behave in feminine ways. The case was heard together with those of two gay men. Donald Zarda was fired after he came out. Gerald Bostock was fired after his employer found out he was gay.

Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Looking at the ordinary meaning of these words resolves the cases. “Sex” means “biological distinctions between male and female”. “Because of” means “By reason of” or “on account of”. This is “but-for” causality: but for their sex, these plaintiffs would not have been sacked. (It’s causa sine qua non, if you really want the Latin.)Those employers finding a female employee was attracted to men would not have sacked her for that. Harris would not have sacked a cis woman for wearing a skirt. “Discriminate” means treat differently, intentionally.

That means it is unlawful to sack or penalize someone, when part of the reason is their sex. Discrimination on the ground of sexual orientation or gender identity is necessarily discrimination because of the individual’s sex. A male worker was entitled to claim discrimination for sexual harassment by other men: it was different in form from the sexual harassment of women. An employer that would not hire women with young children, even though it favoured hiring women over men, was discriminating on the ground of sex, against those mothers as individuals.

It does not matter how people would label the discrimination. Aimee Stephens might say she was sacked because she is trans. It is still because she is seen as male. Sex need not be the sole or main cause of the employer’s action. And even if the employer treats men and women as groups the same, discrimination against an individual is unlawful.

The employers contended that they sacked their employees for sexual orientation or gender identity, and attempted to argue that was different from sex. But the rules are based on the sex of the employees, even though sexual orientation and gender identity are distinct concepts from sex. It does not matter that the Senate and House of Representatives have passed bills at different times to add sexual orientation or gender identity to Title VII, but these have never become law. If Congress had intended for there to be an exception- Discrimination on the ground of sex is unlawful, except when it is on the ground of sexual orientation- it should have said so.

The employers argued that no-one, in 1964, would have expected the law to apply to gay or trans people, but that does not matter because the words of the statute are unambiguous. The Court has to enforce the law’s plain terms.

That is, a conservative Supreme Court has extended protection to gay and trans people though others reading the law, including the sponsors of those failed bills in congress, did not think we were protected. The judgment is available as a pdf.

It is much more elegant than British law. Here, sex, sexual orientation, marriage or civil partnership, and gender reassignment are all separate headings for protection.