The recent decision from a conservative-leaning Supreme Court to find that the Civil Rights Act of 1964 includes protection based on sex for LGBT+ individuals in the context of employment was a surprising one. This case is not the end of the fight for LGBT+ rights. It is a milestone along the way.
Justice Gorsuch, who wrote the majority opinion, specifically limited the decision to not providing protections outside of the realm of employment, “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” He also opened the door to religious objections and religious grounds for dismissal, “How these doctrines protecting religious liberty interact with Title VII are questions for future cases too,”[1]
The argument was one of statutory interpretation of the Civil Rights Act, 1964, which contrasts with the 2015 LGBT+ marriage case that hinged on constitutional protections.
The balance of the argument rested on whether the court should look to the text of the statute with reference to their ordinary meaning or attempt to interpret what the framers of the legislation intended. The difference is in whether the congress at the time of the passage of the Civil Rights Act, 1964, would have envisioned sexual orientation and identity as encompassed by sex. The relevant text of the 1964 act;
“fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”[2]
Justice Neal Gorsuch, in the majority opinion of the court, states that “Only the written word is the law”.[3] This statement reflects his staunch stance as a textualist, i.e. a judge that evaluates the law first and foremost by the literal words of the legislation and what they mean. So here, Gorsuch has looked to the word sex in the 1964 Act and the word individual.
That Gorsuch wrote the opinion cannot be attributed to coincidence, as Chief Justice John Roberts would have had the decision to assign the opinion and chose Gorsuch as opposed to himself or one of the more traditionally liberal members of the court. Roberts, in this decision, differed from his previous opinion four years ago when he was in the minority for the LGBT+ marriage case. Chief Justice Roberts and Gorsuch were joined in the majority decision by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
The decision came as a surprise after Justice Anthony Kennedy retired from the bench as he was the author of previous decisions that strengthened LGBT+ rights. Gorsuch avoided the high-brow tone of correcting an injustice that Kennedy favored and leaned into his textual conservatism roots. Stating that the words of the statute and the focus on “individuals, not groups”[4] could only lead to one interpretation of the law.
“We must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,”[5] Gorsuch wrote. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.”[6]
He further acknowledged that his interpretation did not hinge on what the framers of the legislation would have anticipated the meaning to be, his deviation from a purposive approach complete.
“When the express terms of a statute give us one answer and extratextual considerations suggest another,”[7] Gorsuch wrote, “it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” [8]
He specifically deviates from the creator’s intentions in a way that is criticized by his dissenting colleagues. “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,”[9] he continued, “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”[10]
The word individual is crucial to his analysis as without that, he seems to indicate that if treating the class of male and the class of female the same, then the legislation would not provide protections for LGBT+ people. So, to fire a male for being attracted to men would be permissible if a woman that was attracted to women would also be fired, the same with gender identity. However, individuals must be compared to other individuals and not to the treatment of a class to which they belong. A woman fired for being attracted to women is being discriminated against if a man attracted to women would not be dismissed or otherwise treated differently.
An issue with this analysis is that it is somewhat limiting in terms of scope. The decision protects employment in so far as the text of the Civil Rights Act, 1964, does. It does not create a blanket ban against discrimination or provide the framework for one as other legislation may not include the word individual, and thus as a class, men and women may be treated the same while leaving discrimination against the LGBT+ community permissible.
The President of the Conservative First Institute said, “We are grateful that the Supreme Court was clear in the opinion that this federal statute does not overrule peoples’ religious freedoms. We will find out in the very near future whether this is a hollow promise or a truthful assurance that the religious liberty of all Americans will be protected.”[11] Indicating that, in their opinion, the argument is still far from truly over and that the freedoms of LGBT+ individuals will be in future balanced against religious freedoms.
Gorsuch did address the transgender plaintiff Aimee Stephens by her preferred pronouns in the decision, which in itself is a victory for transgender rights. Against the backdrop of Conservative Governors and legal systems throughout the U.S. that still fight not to recognize an individual’s right to change their gender.
Those in the minority also made their thoughts clear in dissenting opinions. The consensus was that the majority was not interpreting the law as written but making new law. Justice Kavanaugh stated that “our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”[12]
He went further in comments that may be appealing to those who believe that that women’s rights movement and the rights of LGBT+ and especially transgender women should be held separate. “Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both,”[13] Seneca Falls is where the Women’s Rights movement signed an early Declaration of Women’s Rights in 1848, whereas Stonewall is a riot caused by repeated haranguing of a LGBT+ bar by police in 1969.
He went further in a purposive angle, looking to the purpose of the legislation as written by Congress, as he references the history and sociology of the law and various group’s legal battles to be recognized. “So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”[14]
Justice Alito expressed his concern that the effects of the decision would be far-reaching and that, “The entire federal judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”[15]
Therefore, not all of the issues surrounding LGBT+ rights are settled yet, we can expect to see more of this being litigated through the courts and acted upon in Congress.
[1] Bostock v. Clayton County, 590 U.S. ___ (2020)
[2] 42 U.S. CODE § 2000E–2 – UNLAWFUL EMPLOYMENT PRACTICES LII / LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/uscode/text/42/2000e-2 (last visited Jun 17, 2020)
[3] Bostock v. Clayton County, 590 U.S. ___ (2020)
[4] Bostock v. Clayton County, 590 U.S. ___ (2020)
[5] Bostock v. Clayton County, 590 U.S. ___ (2020)
[6] Bostock v. Clayton County, 590 U.S. ___ (2020)
[7] Bostock v. Clayton County, 590 U.S. ___ (2020)
[8] Bostock v. Clayton County, 590 U.S. ___ (2020)
[9] Bostock v. Clayton County, 590 U.S. ___ (2020)
[10] Bostock v. Clayton County, 590 U.S. ___ (2020)
[11] Robert Barnes, Supreme Court says gay, transgender workers protected by federal law forbidding discrimination, WASHINGTON POST, Jun. 15, 2020
[12] Bostock v. Clayton County, 590 U.S. ___ (2020) (Dissent)
[13] Bostock v. Clayton County, 590 U.S. ___ (2020) (Dissent)
[14] Bostock v. Clayton County, 590 U.S. ___ (2020) (Dissent)
[15] Bostock v. Clayton County, 590 U.S. ___ (2020) (Dissent)