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gender equalityIn its recent decision, authored by Justice Neil Gorsuch, Bostock v. Clayton County, 590 U.S. ____ (2020), the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, should now be read to also prohibit discrimination on the basis of sexual orientation and gender identity. Besides for the obvious objection to reading words into the statute that Congress did not put there and never intended, as the court itself admitted (stating that “those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result”), the decision will have very far-reaching unintended consequences that will have a profound impact on American society.

The court stated that “[t]he statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.” 590 U.S. ____ (2020), Slip Opinion, p. 9.

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