LGBT and Transgender Rights in the United States

On 15 June 2020, in Bostock v. Clayton County, the United States Supreme Court issued a historic ruling on the rights of LGBT and Transgender Persons. Title VII of the Civil Rights Act of 1964 forbids employers from discriminating against employees on the basis of sex as well as gender, race, colour, national origin and religion. The Act makes no reference to sexual orientation or gender identity. While some states in the US had already explicitly extended such protections to LGBT workers, many have not.

The facts of the three cases the Court considered were simple. In each case, an employer allegedly fired a long-time employee simply for being homosexual or transgender. By a majority of 6:3 the Supreme Court ruled the federal law prohibition on discrimination based on ‘sex’, should be understood to include sexual orientation and gender identity. The issue was approached as one of domestic statutory interpretation. It is notable that the majority opinion was delivered by Justice Gorsuch, an appointee of President Trump, joined by Chief Justice Roberts. Both are considered to be conservative. They were joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, generally regarded as liberal in their approach. There have been previous Supreme Court successes for gay rights advocates but this is perhaps the first major victory for transgender individuals. Transgender rights are becoming a political and legal battlefield in an increasing number of States around the world. Three conservative Justices, Alito, Thomas and Kavanaugh (also a Trump appointee) opposed the ruling. It is difficult to convey the bitterness with which they disagreed with the majority. The majority opinion was described as legislation which was deceptively disguised as statutory interpretation. The minority’s opinion was that responsibility to amend Title VII of the Civil Rights Act of 1964 belonged to Congress and the President in the legislative process, not to the Supreme Court.

From an international human rights perspective it is both notable and disappointing that neither the majority nor the minority made any reference to international human rights jurisprudence on the issue of sexual orientation discrimination. The issue has been extensively considered by Professor McGoldrick in his articles on ‘The Development and Status of Sexual Orientation Discrimination under International Human Rights Law’ (2016) 16(4) Human Rights Law Review 613–668 and on ‘Human Rights - The struggle for recognition of LGBTQ rights from a transnational perspective’. In H. Chiand et al (eds), Global Encyclopedia of Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) History (2019) Charles Scribner’s Sons, Gale. 759-767.