Supreme Court: Sexual Orientation, Gender Identity Protected Under Title VII

By Kimberly Rau, MassLandlords writer

On June 15, 2020, the United States Supreme Court answered a long-standing question in the lower courts, ruling that Title VII, also known as the Civil Rights Act of 1964, holds implied protections for a person’s sexual orientation or gender identity. While the Massachusetts Fair Housing Law already protects these two classes, this ruling changes housing and employment protections on a national level as well.

The U.S. Supreme Court has ruled that sexual orientation and gender identity are protected under Title VII.
Image credit: Ian Hutchinson 4 Unsplash

The SCOTUS heard three cases from lower courts that lead to their decision. The first, Bostock v. Clayton County, concerned a Georgia-based child welfare advocate, Gerald Bostock, who claimed he lost his job after he began participating in a gay softball league. Clayton County terminated his employment, citing inappropriate conduct. The Eleventh Circuit court ruled that Title VII protection did not cover sexual orientation, which brought the case to the SCOTUS.

In the second case, R.G. and G.R. Harris Funeral Homes Inc. v. EEOC, funeral director Aimee Stephens was fired from her job after announcing her intention to transition from male to female. The Sixth Circuit Court ruled that Title VII does include transgender status in its protections.

In the third case, Altitude Express, Inc. v. Zarda, David Zarda, a gay man, lost his job as a skydiving instructor after a customer complaint. Zarda stated that he would sometimes disclose that he was gay to make female skydiving clients more comfortable during tandem jumps, and maintained that he was fired for being homosexual. The Second Circuit sided with Zarda, stating Title VII does protect sexual orientation.

“In light of these and other federal decisions reaching conflicting conclusions on this issue, the Supreme Court agreed to hear these three cases to resolve the circuit split,” a release from Eckert Seamans stated.

The Supreme Court Majority Opinion

Justice Neil Gorsuch wrote the court’s majority opinion on the case, stating in part, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

In other words, if a company fires a man for being gay, they are firing him for being attracted to men. If they would not fire a woman for being attracted to men, then they are firing the gay man for being a man attracted to men.

“If the employer fires the male employee for no reason other than his attraction, the employer discriminates against him for traits or actions it tolerates in his female colleague,” the majority opinion stated.

The Housing Connection

While these cases surrounded employment, it is easy to connect the dots to housing practices. While Massachusetts already protects gender identity and sexual orientation against discrimination, all landlords in Massachusetts should view state and federal law as unambiguous: sex, sexual orientation and gender may not be considered when making decisions about to whom you will provide housing. Any inquiry about these is discrimination, and illegal.

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