Yash Jain & Ayushi Dubey
On June 15, 2020, the United States Supreme Court (“SCOTUS”), in Bostock v. Clayton County, delivered a landmark opinion holding that employees cannot be fired from a job based on their transgender and homosexual identity. The court extended the scope of the term “sex” in Title VII of the US Civil Rights Act, 1964 to include “sexual orientation”. Title VII barres an employer from discriminating against any individual based on their race, color, religion, sex and national origin. The court held that “an employer violates Title VII when it intentionally fires an individual employee based in part on sex.” The ruling is seen as a welcome step by the transgender community especially as fewer than 50 states in the US ban employment discrimination based on gender identity or sexual orientation.
One of the petitioners, Bostock, a long-time employee with Clayton County in Georgia, began participating in a gay recreational softball league. Many in the local community made disparaging comments relating to his sexual orientation and participation in the league. Soon, he was discharged from the job. The case went up to the Supreme Court to decide whether discrimination on the ground of sexual orientation constitutes prohibited employment discrimination within the meaning of Title VII of the Act.
THE COURT’S REASONING
The majority consolidated three cases, Phillips v. Martin Marietta Corporation, Angeles Dept of Water and Power v. Manhart and Oncale v. Sundowner Offshore Services that lead to three notable conclusions. Firstly, it’s irrelevant what an employer might call its discriminatory practice, but it matters how others might label it. Secondly, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. A but-for cause analysis which shows that the individual’s sex was one of the reasons would be sufficient. Thirdly, Title VII would be violated even if the employer treated males and females similarly, as groups. To illustrate this, Justice Gorsuch offered an example where an employer fires only one of his two employees for being attracted to males. The fact that the male employee was fired for being attracted to males while the female employee was not, constitutes a violation of Title VII. Further, as title VII concerns the employment rights of an individual, justifying any self-made classification by the concerned employer is not permitted by law.
The majority, premising its reasoning on the above observations, adopted the “but-for causation test” and rejected the “motivating-factor test” in its entirety. The but-for cause test incorporates a standard of but-for causation, which is established whenever a particular outcome would not have happened but for the purported cause. In this case, this but for test was whether the discrimination suffered by the petitioner was based on homosexuality and gender. On the other hand, the motivating-factor test states that discrimination based on homosexuality or transgender status where an employer who intentionally treats individual employees differently because of their sex violates Title VII of the Act. The court observed that the question isn’t just what “sex” meant, but what Title VII says about it. Notably, the statute prohibits employers from taking actions “because of” sex, and the ordinary meaning of ‘because of’ being ‘by reason of’ or ‘on account of.”
However, in the dissenting opinion, the SC observed that the terms “sex” and “sexual inclination” are unequal and cannot be equated. Further, the minority opinion stated that the majority decision goes against the fundamental constitutional principle of separation of powers and amounts to a brazen abuse of the Supreme Court’s authority to interpret statutes. Furthermore, there was no legislative intent at the time the 1964 Act was enacted to allow for such a broad expansion in the meaning of term “sex” at the time of enactment in 1964. The majority refuted this idea by stating that “because few in 1964 expected today’s result, we cannot refer the subject back to congress which would be nothing but our denial to enforce the plain terms of law when a new application of law emerges, that is both unexpected and important.”
THE WAY FORWARD
The judgement leaves some questions unanswered. The court had in Masterpiece Cakeshop v. Colorado Civil Rights Commission held that it was legal for a person to not offer his services to gay individuals citing his religious convictions. The court’s decision to extend the ambit of sex to include sexual orientation and gender identity excludes the notion of bisexual and intersex individuals’ sexual orientation. Notably, the majority’s judgement does not consider bisexual and intersex as facets of sexual orientation and gender identity. Indeed, when seen in the light of these circumstances, the coverage of sexual orientation and sexual identity is more than mere homosexuality and transgender status. The decision to conflate sex with sexual orientation and gender identity risks the exclusion of alternate sexualities.
In this regard, the Indian Supreme Court provides a more viable alternative. Under Article 15 of the Indian Constitution which prohibits discrimination, inter alia, on the ground of sex, the Indian Supreme Court in NALSA v. Union of India and Navtej Singh Johar v. Union of India has extended protection under Article 15 to gender identity and sexual orientation respectively. The court in NALSA held that “discrimination on the ground of ‘sex’ includes discrimination on the ground of gender identity.” Affirming with the above views the court in Navtej held that ‘sex’ “is not merely restricted to the biological attributes of an individual, but also includes their ‘sexual identity and character’.” The court observed that sexual orientation is a ground analogous to ‘sex’ considering the former’s immutable status and fundamental choice and held that the prohibition of discrimination based on sex encompasses “instances where such discrimination takes place based on one’s sexual orientation.” These judgements extend protection to gender identity and sexual orientation as a whole.
Though the US Supreme Court has widened the ambit of “Sex” to include lesbian, gay and transgender individuals, those groups left out can claim protection under NALSA (i.e. intersex individuals) and Navtej (i.e. asexual and bisexual individuals). It is argued, therefore, that the US Supreme Court offers limited protection from discrimination based on gender identity and sexual orientation.
Yash Jain & Ayushi Dubey are 4th Year Law students at Institute of Law, Nirma University, Ahmedabad.