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  • July 07, 2020

    A ‘Monumental’ Decision: U.S. Supreme Court and LGBTQ Discrimination

    The U.S. Supreme Court has now weighed in on sexual-orientation and gender-identity discrimination and protections in Title VII of the Civil Rights Act of 1964. Erin Strohbehn and Max T. Stephenson discuss the recent decision in Bostock v. Clayton County, Georgia.

    Erin M. Strohbehn, Max T. Stephenson

    In January 2020, Max Stephenson and Erin Strohbehn wrote a blog entry related to cases that were pending before the U.S. Supreme Court.

    The cases involve the scope of the Civil Rights Act of 1964 and the incredibly important question of whether Title VII’s prohibition on sex discrimination encompasses claims of discrimination on the basis of sexual orientation and gender identity.

    Max T. Stephenson Max T. Stephenson, Marquette 2013, is an attorney with Gimbel, Reilly, Guerin & Brown, LLP, in Milwaukee, where his practice includes representing clients in divorce, paternity actions, post-judgment actions, guardianships, and injunctions.

    Erin Strohbehn Erin Strohbehn, Marquette 2006, is a partner at Gimbel, Reilly, Guerin & Brown, LLP, in Milwaukee, where she practices in probate and trust litigation, civil litigation, and employment law.

    We now have a decision. The case is Bostock v. Clayton County, Georgia,1 with certiorari granted from the 11th Circuit. Bostock was combined with two other cases from different circuits: Altitude Express Inc. v. Zarda (2d Cir.)2 and R.G.& G.R. Harris Funeral Homes Inc. v. EEOC (6th Cir.).3

    The decision, found on the Supreme Court's website, was monumental.

    Before its announcement, in 26 states, you could be fired from your job solely based upon your membership in the LGBTQ community. However, in a 6-3 decision released June 15, 2020, the Supreme Court unequivocally held that gay and transgender people are protected by Title VII of the 1964 Civil Rights Act.

    By its decision, the Supreme Court rightly affirmed Title VII’s broad central purpose: to achieve equality of employment opportunities by prohibiting employment discrimination on the basis of sex.

    The Court’s decision was written by Justice Neil Gorsuch, a President Trump nominee, with the decision rejecting the contrary views of the U.S. Department of Justice.

    Now leading the way in one of the most sweeping LGBTQ rights rulings in court history, Justice Gorsuch wrote, “An employer who fires an individual merely for being gay or transgender defies the law.”

    The Supreme Court’s decision sends a clear message, that progress on LGBTQ rights is being made, with the step a monumental one for the rights of the community, of individuals, and lawful employment.

    This article was originally published on the State Bar of Wisconsin’s Appellate Practice Section Blog, Sua Sponte. Visit the State Bar sections webpage or the Appellate Practice Section web pages to learn more about the benefits of section membership.


    1Bostock v. Clayton County, 723 Fed. Appx 964 (11th Cir. 2018).

    2Zarda v. Altitude Express, Inc., 883 F.3d 100 (2nd Cir 2018).

    3R.G. & G.R. Harris Funeral Homes v. EEOC, 884 F.3d 560 (6th Cir. 2018).

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    Sua Sponte is published by the Appellate Practice Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Jacques Condon and review Author Submission Guidelines. Learn more about the Appellate Practice Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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