The Oklahoma Bar Journal September 2022

or transgender fires that person for traits or actions it would not have questioned in members of a differ ent sex.” 14 The employers in Bostock argued that based on the meaning of the word “sex” when Title VII was enacted in 1964, the term “sex” refers to a person’s status as either biologically male or female. 15 However, as outlined in previous cases, the issue is not the meaning of the term “sex” but the law’s pro hibition of actions taken “because of” an employee’s sex. 16 Ultimately, the court concluded that “an indi vidual’s homosexuality or trans gender status is not relevant to employment decisions” because “it is impossible to discriminate against a person for being homo sexual or transgender without dis crimination against the individual based on sex.” 17 Bostock makes it

and concluding that transgender individuals were not members of a protected class under the Equal Protection Clause. 7 The court noted the vast majority of federal courts addressing the issue had concluded that Title VII’s prohibi tion on sex discrimination means only that it is unlawful to discrim inate against women because they are women and men because they are men. 8 Ten years later, Kimberly Hively filed a claim under Title VII stating that she suffered discrimination when her community college employer terminated her employ ment because she was a lesbian. 9 Hively argued that if she had been a man married to or dating a woman, the employer “would not have refused to promote her and would not have fired her.” 10

Concluding “it is actually impos sible to discriminate on the basis of sexual orientation without dis criminating on the basis of sex,” the court held that discrimination against a woman for being a les bian was sex discrimination in violation of Title VII. 11 In 2020, the United States Supreme Court consolidated three employment cases that involved either a gay or transgender person who was fired due to their gay or transgender status. 12 In all three cases, the employer was alleged to have fired long-time employ ees simply because the employee was gay or transgendered. 13 In the majority opinion, Justice Gorsuch noted that Title VII outlawed dis crimination on the basis of sex and stated, “An employer who fires an individual for being homosexual

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THE OKLAHOMA BAR JOURNAL