Bostock v. Clayton County and What Title VII Now Protects at Work

Gerald Bostock's job was finding safe homes for children. He worked for Clayton County, Georgia, just south of Atlanta, as a coordinator in its program for children in the juvenile courts, and by his account he was good at it; the county had praised his work. In 2013 he joined a gay recreational softball league. Not long after, people in his workplace started making comments about his sexual orientation and the league, and the county audited the program funds he managed. It then fired him for what it called conduct "unbecoming" of a county employee. He sued, lost in the lower courts because federal appeals precedent in Georgia said firing someone for being gay was not sex discrimination, and kept going. Seven years later, his name sat at the top of one of the most consequential workplace rulings of the century.

In short: In Bostock v. Clayton County, decided June 15, 2020, the Supreme Court held 6-3 that firing someone for being gay or transgender is discrimination "because of sex" under Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch, a textualist appointed by President Trump, wrote the opinion. It protects workers at employers with 15 or more employees, but it left several big questions open.

Three workers, one question

Like many landmark cases, Bostock was a bundle. The Court heard Bostock's case together with two others.

Donald Zarda was a skydiving instructor on Long Island. While strapped to a female customer for a tandem jump, he mentioned that he was gay, partly to put her at ease about the close physical contact. She complained, and his employer, Altitude Express, fired him. Zarda died in a base-jumping accident in 2014, before his case was resolved, and his estate carried it forward.

Aimee Stephens worked for six years as a funeral director at R.G. & G.R. Harris Funeral Homes in Michigan. In 2013 she wrote a letter to her employer explaining that she was transgender and would come to work as a woman after a vacation. The owner fired her. The Equal Employment Opportunity Commission sued on her behalf. Stephens was seriously ill by the time the case reached the Supreme Court, and she died in May 2020, a few weeks before the ruling.

The three workers had something in common. None was accused of doing the job badly. Each was fired for who they were.

A strange history inside the word "sex"

To understand the opinion, it helps to know how the word "sex" got into Title VII in the first place, because the story is odd and has been argued about for decades.

The Civil Rights Act of 1964 was written mainly to end racial discrimination. During the House debate, Representative Howard Smith of Virginia, the powerful chair of the Rules Committee and an opponent of the bill, offered an amendment adding "sex" to the list of forbidden grounds for employment discrimination. Historians still disagree about his motives. Some see a poison pill meant to make the bill harder to pass; others note that Smith had a long relationship with advocates of an Equal Rights Amendment, and that women members of the House pushed hard for the amendment once it was offered. Whatever the reason, it passed, the bill passed, and the word stayed.

For the next half-century, courts mostly held that "sex" in Title VII meant discrimination against men or women as such, and did not reach sexual orientation or gender identity. Then, beginning in the 2010s, the EEOC and a few appeals courts started to reason differently. If an employer fires a man for marrying a man but would not fire a woman for marrying a man, they asked, is that not treating him differently because of his sex? By 2019, the federal appeals courts were divided, and the Supreme Court agreed to settle it.

The reasoning: a textualist reads the text

Gorsuch's opinion, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, is short on history and long on grammar, which is exactly the point.

Title VII makes it unlawful for an employer to fire or otherwise discriminate against an individual "because of" that individual's sex. The Court had previously read "because of" to mean ordinary but-for causation: if changing the employee's sex would have changed the employer's decision, sex was a cause. It does not have to be the only cause or even the main one.

Apply that test. Imagine two employees who are identical in every way, both attracted to men. One is a man and one is a woman. If the employer fires the man for being attracted to men and keeps the woman, the employer has fired him in part because he is a man. Likewise, an employer who fires a transgender woman because she was identified as male at birth and now lives as a woman, but who would not fire a woman identified as female at birth, is treating her differently in part because of sex. As Gorsuch put it, an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.

The employers' best answer was that nobody in 1964 understood the law to cover gay or transgender people, and that Congress had repeatedly declined to add sexual orientation to Title VII. Gorsuch's reply was that the words of the statute, not the expectations of the people who passed it, are the law, and that the Court had often applied laws to situations their drafters never foresaw. Laws prohibiting sexual harassment between men, for example, were not what Congress had in mind in 1964 either, yet the Court had held in 1998 that Title VII covers them.

The dissents and their real worry

Justice Samuel Alito, joined by Justice Clarence Thomas, wrote a long dissent accusing the majority of legislating under the guise of textualism. In his view, the ordinary meaning of "discrimination because of sex" in 1964 meant treating men and women differently, and everyone at the time would have understood it that way. He also listed a series of consequences he expected to follow, including disputes over bathrooms and locker rooms, women's sports, religious employers, health coverage and speech about pronouns.

Justice Brett Kavanaugh dissented separately and more mildly. He argued that ordinary meaning, not literal meaning, should control, and that in common usage sexual orientation discrimination is different from sex discrimination. He also wrote, unusually for a dissent, that millions of gay and lesbian Americans had worked hard for this outcome and deserved congratulations on an important victory, even though he believed it should have come from Congress.

That point about Congress is worth weighing. The Equality Act, which would add sexual orientation and gender identity explicitly to federal civil rights laws covering employment, housing, public accommodations and more, has passed the House more than once but never the Senate. A fair-minded critic of Bostock can say that if the votes are not there in Congress, the Court should not supply them. The fair-minded answer is that the Court did not add anything; it applied words Congress already wrote, the same way it would for anyone else.

What Bostock covers, and what it does not

Here is the practical part, stated as general information rather than legal advice for any situation.

Bostock means that under federal law, an employer covered by Title VII cannot fire, refuse to hire, demote or otherwise discriminate in the terms of employment against a worker because that worker is gay, lesbian, bisexual or transgender. Title VII covers private employers with 15 or more employees, plus most state and local governments and federal agencies. A worker who believes this has happened generally must file a charge with the EEOC, or with a state fair employment agency, before going to court, and the deadlines are short: usually 180 days from the discriminatory act, extended to 300 days in states with their own agency. Many states have their own anti-discrimination laws that cover smaller employers and sometimes give more protection.

What the Court expressly did not decide is just as important. Gorsuch wrote that the Court was not addressing bathrooms, locker rooms, dress codes "or anything else of the kind." He also noted that religious employers may have defenses under the Religious Freedom Restoration Act, the First Amendment's ministerial exception and Title VII's own religious exemptions, and left those for future cases.

Since 2020, those open questions have been where the fights are. Federal agencies under President Biden read Bostock broadly and applied its reasoning to other laws that ban sex discrimination, including in health care and education. Since 2025, the Trump administration has reversed course, directing agencies to recognize only two sexes defined at birth and narrowing how federal civil rights offices handle gender-identity complaints. Courts have also split over whether Bostock's reasoning carries over to other statutes and to the Constitution. In United States v. Skrmetti in 2025, the Supreme Court declined to decide whether Bostock's logic applies to the Equal Protection Clause, and in 2026 it held in West Virginia v. B.P.J. that Title IX and equal protection allow sex-based school sports teams.

Why a workplace ruling is a labor issue

It is easy to file Bostock under LGBTQ rights and leave it there. I think it belongs just as much under workers' rights, and the reason has to do with power on the job.

Most American workers are employed at will, which means they can be fired for any reason or no reason, except for the reasons the law specifically forbids. That makes the list of forbidden reasons enormously important, because it is often the only thing between a worker and an arbitrary boss. Before Bostock, a gay worker in roughly half the states could be fired with no recourse at all. Gerald Bostock did not have a union contract with a just-cause clause. Most workers do not.

That is where the labor movement comes in. A union contract can protect workers in ways that statutes cannot, by requiring cause for discipline and giving workers a grievance process that does not depend on proving a protected motive in court. Unions have also been some of the strongest institutional backers of anti-discrimination protections, partly because a workforce divided against itself is easier to manage. Protections for any group of workers tend to raise the floor for everyone.

A split on the right about how to read a law

Bostock is often described as a liberal victory, and in its result it was. But the more interesting fight in the case took place among conservatives, and it says a lot about how the Court works now.

For a generation, the conservative legal movement had championed textualism: the idea that judges should apply the words of a statute as written, not the purposes or expectations of the legislators who passed it. Justice Antonin Scalia made that approach famous, and the movement trained a cohort of lawyers and judges in it. Gorsuch is one of its most committed practitioners. In Bostock he applied the method exactly as advertised, and it produced an outcome that many conservatives did not want.

The reaction was sharp. Some conservative commentators accused Gorsuch of betraying the movement. Alito's dissent compared the majority's opinion to a pirate ship sailing under a textualist flag, an image that quickly became famous in law school classrooms. Defenders of the majority replied that a method you abandon whenever it gives an answer you dislike is not a method at all, and that textualism's whole promise was to tie judges' hands, including conservative judges' hands.

Progressives can learn something from that exchange, and I think it is this. Arguments made on the other side's terms are often the ones that persuade. The lawyers for Bostock, Zarda and Stephens did not ask the Court to update the Civil Rights Act for modern times. They asked it to read the words Congress wrote. That is a framing a conservative justice could accept without giving up anything he believed, and two of them did.

The same lesson shows up in Kavanaugh's dissent. He disagreed about the meaning of the words, but he did not question the dignity of the workers or the importance of their claims. A disagreement conducted that way leaves room for the next case to come out differently, or for Congress to act. A disagreement conducted with contempt usually does not.

There is a practical side, too. Because Bostock is a reading of a statute rather than of the Constitution, Congress can change it, in either direction, by passing a new law. That cuts both ways. It means the protection is less secure than a constitutional right, since a future Congress and president could narrow Title VII. It also means a future Congress could write the protection down explicitly, as the Equality Act would, and settle the questions Bostock left open. Which of those happens depends on elections, not judges.

What you can do

Bostock gave workers a tool. Tools are only useful if people know they exist and have help using them.

• Know your state's protections. Federal law is the floor. Ask your state legislators, whom you can find at find your representatives, whether your state's civil rights law explicitly covers sexual orientation and gender identity, and whether it reaches employers smaller than 15 workers.
• Find legal help before a deadline passes. Discrimination charges have short clocks. The organizations directory lists legal aid nonprofits and LGBTQ+ organizations in every state, many of which can point workers to free or low-cost help.
• Look at the union side. The labor page shows the newest union elections the NLRB has counted, who won, and how union membership has changed over time. If your workplace is organizing, a just-cause clause is worth fighting for.
• Follow what comes next. The questions Bostock left open keep returning to the Supreme Court. Court watch carries this term's opinions with the Court's summaries and the emergency docket.
• Read across both fights. The workers and unions topic page and the LGBTQ rights topic page cover the same people from two directions.