It is already a truism that the Supreme Court’s June 15 six–three decision, holding that discrimination against LGBT people constitutes sex discrimination, came as a shock to queer and trans legal advocates. With the replacement by Brett Kavanaugh of Anthony Kennedy, who tended to favor gay rights, and with John Roberts joining the dissenters in the 2015 same-sex marriage case Obergefell v. Hodges, it looked to be five solid votes against the gay and transgender employees in the three cases consolidated as Bostock v. Clayton County. Plans for protests were already in the works if the Court, as expected, greenlighted the firing of Gerald Bostock and Donald Zarda, two gay men, and of Aimee Stephens, a transgender woman.
Likewise, conservatives were not worried, since it seemed unimaginable that this Court would find room for queer and trans people under the carapace of a law passed fifty-six years ago ostensibly to protect women in the workforce. Such a major policy shift, they thought, would be legislating from the bench. (In the last few years, sex discrimination caselaw at the appellate level has been trending toward transgender plaintiffs; it remained more divided on the question of sexual orientation. The transition to a Trump-dominated judiciary is not yet complete in the circuit courts.) Last fall, two attorneys from the conservative First Liberty Institute confidently predicted victory for the employers: “As the maxim goes, Congress does not hide elephants in mouseholes. All things considered, it seems likely that this Supreme Court will continue to leave such large policy shifts to the discretion of Congress.”
That prediction failed, dramatically. For Neil Gorsuch, who authored the majority opinion, and the five other justices who sided with the gay and transgender parties, the logic “follows ineluctably from the statutory text.” One cannot fire a gay, lesbian, bisexual, or transgender person without taking sex into consideration.