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.

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?"

This is a developing story that will be updated.

Read more: 

• EEOC at odds with DOJ over protections for transgender employees
• Despite political shifts, LGBTQ rights remain 
• Are workplaces becoming more LGBTQ friendly? Depends on who you ask.