Justice Neil Gorsuch (Photo: Diego M. Radzinschi / ALM)

The U.S. Supreme Court in a divided decision Monday said federal workplace laws prohibit employers from firing gay, lesbian and transgender workers.

The justices split 6-3, with Justice Neil Gorsuch writing the majority opinion. He was joined by Chief Justice John Roberts Jr., and the court's liberal wing. Justices Brett Kavanaugh and Samuel Alito Jr. wrote separate dissents. Justice Clarence Thomas joined Alito's dissent.

"Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren't thinking about many of the Act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees," Gorsuch wrote in his 43-page opinion. "But the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit."

At oral argument, Gorsuch was seen as possibly leaning toward a ruling for broad protections for LGBT workers based on the text of the law. But he also expressed concern about the possible social impact of providing Title VII coverage.

Alito stated in his 54-page dissent: "There is only one word for what the court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive."

Alto noted that numerous bills have been introduced over the past 45 years that would specifically add "sexual orientation" and "gender identity" to protections under Title VII. "But to date, none has passed both Houses," he wrote.

Kavanaugh, in his separate dissent, wrote that the policy arguments for applying Title VII coverage were "weighty," but, he added, "we are judges, not Members of Congress. Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation." That analysis applies as well to whether Title VII covers gender identity discrimination, he wrote.

The court's decision came in three cases which focused closely on the text of Title VII of the Civil Rights Act of 1964 which bars discrimination by employers "because of … sex." Two cases—Bostock v. Clayton County, Georgia, and Altitude Express v. Zarda—raised the question of sexual orientation under Title VII. R.G. and G.R. Harris Funeral Homes v. EEOC and Stephens centered on gender identity.

Gerald Bostock blamed his firing as a child welfare services coordinator on Clayton County's discovery that he was gay. The U.S. Court of Appeals for the Eleventh Circuit applied its 39-year-old precedent holding "discharge for homosexuality is not prohibited by Title VII."

The Eleventh Circuit refused to review the panel decision. Circuit Judge Robin Rosenbaum filed a dissent on the issue of reconsideration, calling the case "indisputably en-banc-worthy" and noting action by other circuits.

Brian Sutherland of Atlanta's Buckley Beal was counsel to Bostock; Clayton County was represented by Jack Hancock of Freeman Mathis & Gary. Both lawyers remained on the case at the U.S. high court, although oral arguments were handled by other lawyers.

During arguments in October in Bostock and Zarda, Stanford Law's Pamela Karlan, representing gay and lesbian employees, told the justices: "When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex because the adverse employment action is based on the male employee's failure to conform to a particular expectation about how men should behave."

But Alito noted that Congress has repeatedly declined to act on requests to address the sexual orientation issue. "And if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature," he said.

Karlan's opponents, Jeffrey Harris of the boutique firm Consovoy Park and U.S. Solicitor General Noel Francisco, argued that the sexual orientation and gender identity issues should be decided by Congress, not the high court. The EEOC, which has pushed for a broad reading of Title VII, did not join the Justice Department's brief in the Supreme Court.

At the hearing, Justice Sonia Sotomayor countered that the original Congress used very clear words about what the statute meant. "And regardless of what others may have thought over time, it's very clear that what's happening fits those words. At what point do we say we have to step in?"

Daily Report managing editor Jonathan Ringel (@jonathanringel) added local information to this article, which first ran in the National Law Journal.