Supreme Court Rules Title VII Bars Discrimination Against Gay and Transgender Employees: Potential Implications

"On June 15, 2020, the Supreme Court issued a decision in a series of cases brought by gay and transgender workers alleging that their employers violated Title VII of the Civil Rights Act of 1964 (Title VII) by discriminating against them “because of . . . sex.” The Court held 6-3 in Bostock v. Clayton County, Georgia that Title VII forbids employers from firing an individual for being gay or transgender. The Court’s decision in Bostock was consolidated with two other cases, Altitude Express, Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. (An earlier Sidebar addresses lower courtdecisions in these cases and provides further background on Title VII.)

This Sidebar explains the Court’s holding in Bostock and highlights some potential implications of the decision for other areas of the law, including the “bona fide occupational qualification” (BFOQ) exception in Title VII; constitutional exceptions and religious-based exemptions to Title VII; various aspects of Title IX of the Education Amendments of 1972 (Title IX); and statutes that incorporate Title IX’s requirements, such as the Affordable Care Act..."
Supreme Court, gays and transgender

“Don’t Ask, Don’t Tell”: A Legal Analysis
"...In recent years, several Members of Congress have expressed interest in amending DADT. At least two bills that would repeal the law and replace it with a policy of nondiscrimination on the basis of sexual orientation—H.R. 1283 and S. 3065—have been introduced in the 111th Congress. Other proposed legislation in the 111th Congress includes H.R. 4180, which would protect service members who disclose their sexual orientation to a member of Congress, and H.R. 4902, which would establish additional research, study, and reporting requirements for the Department of Defense (DOD) working group currently reviewing issues that may arise if DADT is repealed. The working group was established in February 2010 by Secretary of Defense Robert Gates, who simultaneously directed DOD to review regulations regarding DADT and to propose any changes that would allow DOD to “enforce the law in a fairer and more appropriate manner.” Based on this review, Secretary Gates announced revisions to the DADT regulations in March 2010 that will ease certain requirements for discharging service members pursuant to DADT. More recently, both the full House of Representatives and the Senate Armed Services Committee approved amendments to the 2011 defense authorization bill (H.R. 5136; S. 3454) that would repeal DADT if certain conditions are met."

"Don’t Ask, Don’t Tell”: A Legal Analysis
"In 1993, after many months of study, debate, and political controversy, Congress passed and
President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in
the armed forces.” The new legislation reflected a compromise regarding the U.S. military’s
policy toward members of the armed forces who engage in homosexual conduct. This
compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” holds that “[t]he
presence in the armed forces of persons who demonstrate a propensity or intent to engage in
homosexual acts would create an unacceptable risk to the high standards of morale, good order
and discipline, and unit cohesion which are the essence of military capability.” Service members
are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise
notwithstanding, the issue has remained both politically and legally contentious. This report
provides a legal analysis of the various constitutional challenges that have been brought against
DADT; for a policy analysis, see CRS Report R40782, “Don’t Ask, Don’t Tell:” The Law and
Military Policy on Same-Sex Behavior, by David F. Burrelli.

Constitutional challenges to the former and current military policies regarding homosexual
conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme
Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual
homosexual sodomy, the courts have uniformly held that the military may discharge a service
member for overt homosexual conduct. However, the legal picture was complicated by the
Court’s 2003 decision in Lawrence v. Texas which overruled Bowers by declaring unconstitutional
a Texas law that prohibited sexual acts between same-sex couples. In addition, unsettled legal
questions remain as to whether a discharge based solely on a statement that a service member is
gay transgresses constitutional limits..."