Bostock V. Clayton County

Alliance Defending Freedom represented Tom Rost at the U.S. Supreme Court in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, one of a trio of cases related to sexual orientation and gender identity in the employment context that were collectively decided under a decision titled Bostock v. Clayton County.

In Bostock, the Court ruled that an employer cannot fire or decline to hire an employee solely because of the employee’s sexual orientation or transgender status. The Court concluded that such employment decisions take into account the employee’s sex, and Title VII of the 1964 Civil Rights Act prohibits employment discrimination “because of sex.” The ruling rejected the common-sense understanding of Title VII’s ban on sex discrimination. However, the Court fortunately agreed that “sex” is biological and genetic.

What questions did Bostock raise?

Under Bostock, churches and religious organizations may not “discriminate” on the basis of sexual orientation or gender identity unless they can successful assert one or more potentially available defenses.

Title VII’s existing religious exemptions permit religious employers to prefer individuals “of a particular religion.” Whether these exemptions protect religious employers from claims of sexual orientation and gender identity discrimination is a hotly contested issue that will likely be resolved in future court decisions.

Other potential defenses include the Religious Freedom Restoration Act, the First Amendment’s “ministerial exception” doctrine, and other First Amendment rights courts have recognized. It remains to be seen how powerful these potential defenses will be. The Supreme Court did reaffirm and broaden the ministerial exception in another 2020 case, Our Lady of Guadalupe School v. Morrisey-Berru. Learn more about this case and its impact here.

If courts reject these defenses, churches and religious organizations will face a number of challenging questions, including the following:

Can religious organizations maintain faith-based conduct standards that reflect their beliefs about marriage, sexual morality, and biological sex?
Will religious employers be forced to cover puberty blockers, cross-sex hormones, and so-called sex reassignment surgeries in their healthcare plans?
Will employers be required to give men who identify as women access to private spaces set aside for women (e.g., locker rooms, showers, changing stations)?
Will employers and employees be required to use transgender pronouns (anything other than “he” for males or “she” for females) in violation of their own religious beliefs about biological sex?

What challenges are ahead for churches and ministries?

What can I do to better protect my church or ministry?

Do your church or ministry’s governing documents make clear your beliefs on marriage and human sexuality?
Have your employees signed a statement affirming that they have read, agree with, and will abide by your church or ministry’s beliefs?
Has your church or ministry adopted a facility-use policy that prohibits uses that conflict with those beliefs?
If your church or ministry performs weddings, do you have a marriage policy grounded in your view of biblical marriage?

What if my church or ministry needs legal help?

Go to the legal intake form.
Fill out the form, and in the “Brief description of your legal situation” section, state that you are an ADF Church Alliance or ADF Ministry Alliance member requesting a document review or consultation on a legal matter.
After you submit this form, an ADF attorney will contact you about your document review or legal matter.

What can my church or ministry do beyond legal preparation?