Why You Can’t Discriminate Based on Gender Identity

Emily Mesch
3 min readJun 15, 2020


Today, the Supreme Court ruled on a small batch of cases on discrimination in the workplace, as they relate to Title VII of the 1964 Civil Rights Act.

The short summary is: an employer cannot discriminate against someone for being transgender or gay. Phew. As a trans person currently looking for a job, I’m giving a huge sigh of relief there, lemme tell you.

Photo by Claire Anderson on Unsplash

But I want to untangle it a little, because it’s not an arbitrary decision. It clarifies what is meant by discrimination, and does so in a clear, albeit legalese, manner.

A note before I start: I am not a lawyer. I might be getting some of the nuance here wrong. This is just my best attempt at an explanation. Specifically, I want to focus on this paragraph from the decision, which was delivered by, of all people, Neil Gorsuch. Proud of you, Neil.

“These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

Okay. Now let’s translate that to plain English.

— בסופו של דבר, ההיגיון זה שלא מותר לטפל ב

Wait, sorry. I said English, didn’t I. So basically, the idea here is that you cannot treat people differently because of their sex. That’s what the literal reading of the law says. Precedent has established that sex (along with all other named causes) only needs to be part of the employer’s motivation for the action to be illegal.

So if a straight male employer fires a female employee because he finds her unattractive, all other issues aside, the law states that this is, in part, discrimination based on sex, because presumably the straight male employer has not fired all of the men who he most likely also finds unattractive.

This is distinguished from something like “comes to work dressed unprofessionally,” which is a standard that can fairly reasonably be applied across genders.

But what this effectively means here is that if you wouldn’t fire a woman for the action of having sex with a man, then you can’t fire a man for the action of having sex with a man. In the eyes of the law, according to the majority decision, these are the same action, and you can’t view the same action differently based on the person’s sex.

That’s also why it protects transgender people. If you have a cisgender female employee who is allowed to wear professional, feminine attire, then you are discriminating based on sex if you disallow a transgender female employee from wearing similarly professional, feminine attire. If you would not fire a cisgender female employee for engaging in medical procedures that affirm her femininity, then you cannot fire a transgender female employee for engaging in medical procedures that affirm her femininity. Expanded to the logical extreme, you also can’t fire a cisgender male employee for engaging in medical procedures that affirm his femininity. These are all the same actions. If one is allowed, they all must be. Otherwise, you are discriminating based on sex.

So that’s the run-down. If someone tells you that the law doesn’t specify discrimination based on sexual preference or gender identity, tell them that those are derivations of discrimination based on sex. Tell them that you cannot discriminate based on the former factors, without also, at least in part, discriminating based on the latter. That’s basically what the 6–3 decision by the Supreme Court today has ruled.



Emily Mesch

I came into this world riding on the heels of Halley's Comet and the Chernobyl meltdown, screaming bloody murder from inside a bomb shelter.