It’s hard to fault Justice Neil Gorsuch’s textualist logic, even if he felt compelled to repeat himself a few times for clarity. The holding of Bostock v. Clayton County* is clear: firing gay and transgender employees, where “but for” being gay or transgender they would not have been fired, is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. As outcomes go, it’s a policy that should have been done a generation ago, had Congress ever had the guts to do its job.
And while many are in shock that this 6-3 decision included the hated Justice Gorsuch, usurper of the seat from Merrick Garland, and Umpire C.J. John Roberts, it’s a lesson to all that justices rarely fit into anyone’s political paradigm, whether thrilled by the decision or outraged.
When Congress enacted Title VII, it used the word “sex” as a shorthand, a word intended and universally understood to mean “male and female.” The notion that this would someday prove to be inadequate to express its scope would have been absurd at the time, as the law routinely still criminalized gay sex and transgender people didn’t exist in the popular mind. The Court dispensed with this argument.
Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.
Instead of using more words in anticipation of a future where we where differences in sexual orientation and identity were acknowledged, the word “sex” alone was used.** And that, under the textualist analysis of Justice Gorsuch, was the key.
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
Embracing both the argument and example proffered by Pamela Karlan, the Court asserted that it did not rewrite the word “sex” to mean anything other than male and female, but that logic constrained the word “sex” to compel the Court to bring homosexual and transgender discrimination within the ambit of “sex.”
We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.
Even though efforts to amend the law to include gay and transgender discrimination failed over and over,*** and even though “sex” in 1964 would never have been thought to include gay or transgender, as vehemently argued by Justice Alito in dissent, the textual use of “sex,” by Justice Gorsuch’s rationale, made the outcome unavoidable.
The answer is clear. 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.
Does this change everything? The Court tossed in the errant paragraph to soothe fears of future shock and suggest that this holding was limited.
What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
Judicial modesty aside, this attempt to disclaim future applications can’t possibly stop the clear rationale from extending to all laws, such as Title IX, and all variations of human behaviors, setting up conflicts both obvious now and unanticipated in the future. The example used by Karlan in argument, and incorporated in the opinion by Gorsuch, seems remarkably benign and uncontroversial. If sex with a man is acceptable for a woman, then unacceptabilty for a man is sex discrimination. No decent person could argue otherwise.
But the brutal lesson of law is that the myriad facets of human behavior lead to scenarios that aren’t desired or anticipated. Whether it’s sexually abused little girls exposed to naked men in locker rooms or expulsion for sexual harassment for withdrawal of sexual consent upon learning that your date has different organs than expected, or a thousand possibilities as yet unimagined,
Had Congress done its job and protected homosexual and transgender people from discrimination, but with conditions to address the inevitable conflicts that will arise, perhaps much of the trauma that will follow for the next generation could have been avoided. While many of us support the policy of eliminating discrimination against gay and transgender discrimination, we recognize that it required a scalpel rather than a cudgel, forcing choices between competing rights that few considered when there was still an opportunity to address them. Later, people will wonder how we could have been so blind. But by then, it will be too late. Indeed, now that Bostock has been decided, it’s already too late.
*For those who would like to read the opinion, but don’t have a free day to read 172 pages, Josh Blackman has been kind enough to prepare a shortened “textbook” version.
**Ironically, “sex” was added by Rep. Howard Smith of Virginia to push the law too far and kill Title VII. It didn’t work.
***Congress’ failure to amend the law may have reflected a rejection of including discrimination against gay and transgender people, or may have reflected that the issue was “too hot” for Congress and so it lacked the fortitude to do its job.
“No decent person could argue otherwise.”
I used to believe that I was a decent person. Now, as I approach my 74th year, I find otherwise. Not to put too fine a point on it, but that sucks.
All the best.
I was never a decent person. Ask anyone.
Then I am in good company.
The consequences are as easy to predict as was this decision. EEOC already foreshadowed them in a series of pen-and-phone “consent decrees” imposed during the Obama Administration. Pronouns of choice must be mandated for all workers, because allowing anything else would be too offensive for [Ed notes] to bear, hence, hostile and discriminatory. Normal people will still be able to secretly believe that gender identity is objectively determined, but will be required to speak and act in all respects as if they hew to the state-imposed dogma that gender is subjectively determined.
Sweet summer child. The Obama admin was toying with the low hanging fruit.
Serious question:. Would an employer still be allowed to fire (or refuse to hire) all bisexuals for being bisexual?
So, employers cannot discriminate against a man for having sex with a man, because they allow women that do that. But, discrimination based on talking with a lisp and giving jazz hands is still ok.
One might want to be circumspect about pretext. Unless you’re a cop.
So an employee’s sexual orientation is now fair game when considering whether their behaviour might constitute sexual harassment in the workplace?
Among many other things.
Are the SCOTUS justices supposed to base their decisions on an imagined parade of horribles that may happen if they rule a certain way? Or are policy decisions supposed to be up to Congress? As always, it depends on whose ox is gored.
I feel that Alito’s dissent is largely neglecting the text and substituting policy preferences based on fears of what happens next. Kavanaugh, on the other hand, gave me an actual sense of ambiguity in the language, and seems to have a stronger dissent, turning on the difference between what he calls the literal meaning of the separate words “discriminate” “against” “due to” “sex”, vs the ordinary meaning of the entire phrase “discriminate against due to sex”. The phrase as the phrase was understood at the time certainly didn’t encompass discrimination against homosexuals or the transgendered. Neither listener or speaker would consider that. On the other hands, the individual words put together clearly do entail that as the Gorsuch so ably explained the logic of Karlan, and pointed back to prior precedent with similar logic (discrimination against mothers is discrimination due to sex, unless you also discriminate against fathers).
There are other questions, whether the interpretation is textualist, originalist, utilitarian, intent at the time of enactment or living constitutionalist. Each has its proponents, though they didn’t quite play out as some anticipated in this decision. Bryan Garner, who was Scalia’s writing partner, said that Scalia would have been unable to blithely overlook the fact that Congress, at the time of enactment, would never have considered approving this interpretation, and that Congress’ refusal to modify the law despite the many efforts would have influenced his willingness to indulge in linguistic sophistry.
Of course, Scalia doesn’t own the interpetation of the Constitution any more than anyone else. He had a phrase that was apt, though: Constitutional but stupid.