Civil Rights, Sexual Orientation, Gender Identity, and the Supreme Court

Photo by Jasmin Sessler on Unsplash

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees “because of such individual’s race, color, religion, sex, or national origin”.

Gerald Bostock was fired from his job as a child welfare advocate for Clayton County, Georgia, after he started participating in a gay recreational softball league and, reportedly, influential members of the community made disparaging comments about his sexual orientation and involvement in the league.

Donald Zarda was fired as a skydiving instructor shortly after mentioning that he was gay.

Aimee Stephens was fired from her job at a funeral home after she decided to cease presenting as a man and begin to live and work full-time as a woman.

Each of Mr. Bostock, Mr. Zarda and Ms. Stephens filed lawsuits under Title VII alleging they had been discriminated against on the basis of their sex.

Everyone agreed that Mr. Bostock and Mr. Zarda were fired because they were gay, and that Ms. Stephens was fired because she was transgender. None of that was in dispute. The only question was whether or not these actions violated Title VII.

The appeals court that heard Mr. Bostock’s case said no: Title VII does not prohibit discrimination against someone because they are homosexual. The appeals courts hearing Mr. Zarda’s and Ms. Stephens’s cases came out the other way, finding that discrimination on the basis of someone being transgender or homosexual did violate Title VII. With a split in the circuits, the Supreme Court consolidated all three cases under Bostock v Clayton County, Georgia to resolve this issue.

In a 6-3 opinion authored by Justice Neil Gorsuch, the Supreme Court yesterday held that employment discrimination against someone because of their sexual orientation or transgender status violates Title VII. Justice Samuel Alito wrote a dissenting opinion, in which Justice Clarence Thomas joined. Justice Brett Kavanaugh wrote a separate dissent.

Supreme Court rulings are often described with a bit of hyperbole, but I think it is safe to say this is among the most important civil rights cases ever decided by the Court. Before yesterday, it was legal in more than half of the states for a business to fire someone solely because they were gay, bisexual, or transgender. As of now, that is no longer the case. And while this ruling only applies to Title VII and employment discrimination, other anti-discrimination laws are written using similar language. As a result, those other laws now will also apply to discrimination on the basis of sexual orientation or transgender status.

*  *  *  *  *  *  *

When a dispute arises as to the meaning of a statute, the job of a court is to decide what the statute means; courts are not supposed to make new laws or rewrite laws they don’t like. Even if a judge thinks a law is a bad idea, or even stupid, they are expected to enforce the law as it was written.

Title VII prohibits employment discrimination because of an individual’s race, color, religion, sex, or national origin. So, the question before the Supreme Court here was this: were the actions taken against Mr. Bostock, Mr. Zarda, and Ms. Stephens discrimination because of their “sex”?

To put it a bit more plainly, does discrimination on the basis of sex (which Title VII prohibits) include discrimination on the basis of sexual orientation or transgender status?

We should begin by recognizing that this is an emotionally charged question with intensely personal consequences to those involved. In proceeding, we should take care to distinguish between what we may want a statute to say, and what it in fact says. We also must be on guard for motivated reasoning: seeking arguments that just support the result we want to see.

Both the majority opinion and the dissents claim to be using a method of analyzing a statute usually referred to as textualism. This approach is simple in concept – if the text of a law is clear and unambiguous, we give effect to the law as it is written – but in practice, as we see here, legal minds can be in profound disagreement.

So, what does it mean to discriminate against someone because of their “sex”?

Both Justice Gorsuch’s majority opinion and Justice Alito’s dissent appear to start from the same point. Justice Gorsuch writes, “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” In his dissent, Justice Alito says, quoting former Justice Antonin Scalia, “our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.’ ” (emphasis added by Justice Alito).

The majority and the dissent further accept that “sex” as understood in 1964 meant one’s status as either male or female as determined by reproductive biology.

Here, however, the majority opinion moves on to consider the meaning of the phrase “because of”. This, Justice Gorsuch says, means much as it does today: it refers to “but-for causation”. That is, if an event would not have happened if a prior event did not happen, then causation is established, and the first event occurred “because of” the second event.

With that established, the majority holds that the plain meaning of the law requires the conclusion that Title VII prohibits discrimination on the basis of sexual orientation or transgender status. Why? “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” If an employer fires a male employee because he is gay – because he is attracted to other men – then of necessity they are firing him as a result of his sex; a woman attracted to men would not have been so fired. As the majority says, “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

Justice Gorsuch acknowledges that this result would have surprised the drafters of the Civil Rights Act. He writes:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. 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. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Justice Alito, in his dissent, comes to a very different conclusion. He continues his analysis by looking at what was originally meant by the complete phrase, “discriminate . . . on the basis of . . . sex.” He writes, “If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.”

To Justice Alito, Title VII prohibits discrimination only if the action was motivated by the fact that the person was either male or female. That, he says, was how it was understood in 1964 (and how it was interpreted by courts until 2017 and by the EEOC for the first 48 years the Civil Rights Act was in effect). He notes that various bills have been proposed in Congress to amend Title VII to include sexual orientation and gender identity, but none have passed. If the law already covered those statuses, why were these attempts made? To him, the answer is clear: the law does not cover such discrimination, and the majority’s action constitutes legislation, not interpretation.

In Justice Alito’s view, sexual orientation, gender identity, and transgender status are independent of whether one is male or female, and so are not “sex” withing the meaning of Title VII. If an employer would fire an individual who is homosexual whether they were female or male, then the action cannot be said to be on account of sex, and so is not prohibited by Title VII.

Justice Kavanaugh, in his separate dissent, appears to acknowledge that the literal meaning of Title VII could include discrimination on the basis of sexual orientation or gender identity. However, he argues that such a conclusion would have to be supported by a view either that literal meaning takes precedent over ordinary meaning, or that the ordinary meaning of sex discrimination would include sexual orientation or gender identity. Much like Justice Alito, he focuses on what the phrase “discriminate . . . on the basis of . . . sex” would have meant in 1964, and finds that meaning controlling.

*  *  *  *  *  *  *

So, who has the better argument?

The dissents look to the meaning of the entire phrase “discriminate . . . on the basis of . . . sex” as it was understood in 1964. Justice Alito is almost certainly correct that few if any at that time would have believed that this prohibited discrimination against someone on the basis of sexual orientation or gender identity.

The majority, instead, looks at the meanings of the phrase “because of” and the word “sex,” both in 1964 and now, and finds that discrimination against someone who is gay, bisexual or transgender satisfies those criteria.

Each argument claims support in the text of the statute, based on a simple reading of what it says. The fact that the majority and dissent so disagree shows that what appears to be a straightforward mechanic of statutory interpretation is not so simple.

In the final analysis, I think the argument by the dissents is disingenuous. It is well-established in the law – and conservative justices have absolutely taken the position – that statutes and even the Constitution can have meanings that would have surprised the drafters of those provisions and those who have interpreted them over the years.

A few examples:

• In Citizens United v FEC, a conservative majority of the Supreme Court ruled that the government cannot prohibit the expenditure by corporations of money for political purposes. This overturned prior cases by the Supreme Court that held the opposite, and was inconsistent with laws that had prohibited the use of corporate money in politics going back to at least the early twentieth century.

• In AT&T Mobility v Concepcion, Justice Scalia, writing for the majority, held that the Federal Arbitration Act preempted a California legal principle that made waivers of a right to class actions in arbitration agreements unenforceable. He did so even though the Federal Arbitration Act itself provided that it was subject to “such grounds as exist at law or in equity for the revocation of any contract”. As a result of this ruling, merchants can impose on individual consumers a waiver of a right to use a class action even if local law would find that unenforceable. The Federal Arbitration Act was enacted in 1925 and related to agreements between merchants of similar negotiating power; no one in 1925 would have anticipated the use of such contracts with consumers.

• In 2013 in Shelby County v Holder, Chief Justice Roberts writing for a conservative majority of the Supreme Court invalidated provisions of the Voting Rights Act of 1965 that determined when a jurisdiction that was required to obtain preclearance from the US Attorney General or a panel of judges to changes to its voting procedures could escape such requirements. The provision in question had been previously upheld by the Supreme Court in 1966, 1973, 1980 and 1999, and the law itself was reauthorized by Congress in 2006. In issuing this opinion, the Court substituted its judgment for that of Congress, finding that, with the progress that had been made in voting rights since 1965, Congress “plainly could not have enacted the present coverage formula”.

The argument that the result of this case would have surprised people in 1964 is really beside the point, and pretends to a type of textual honesty that simply is not consistent with Court precedent. It represents an effort to enshrine an interpretation of a law without regard to the actual words on the page. If textualism should mean anything, it should require that individual words be given consistent meanings, and that they be followed to their natural conclusion, whatever the practice may have been at the time of adoption.

There is no question that the majority’s interpretation of Title VII is new, and not consistent with how the law was generally understood for years after the passage of the Civil Rights Act. But that does not make it wrong.

 *  *  *  *  *  *  *

A few concluding thoughts on this case and what comes next.

Many commentators were surprised that Justice Gorsuch, a recognized conservative and the first appointment to the Supreme Court by President Trump, would author an opinion extending protections under the Civil Rights Act to gay, bisexual and transgender people. Others, however, were not as surprised. In this, perhaps, he follows in his mentor’s footsteps. Justice Gorsuch clerked for former Justice Anthony Kennedy, also a conservative but known for his rulings in favor of civil rights, including Obergefell v. Hodges, which legalized same-sex marriage.

It is also worth quoting part of the last paragraph of Justice Kavanaugh’s separate dissent (in which neither Justice Alito nor Justice Thomas concurred). Though he sided with Justice Alito on the method of applying textualism to Title VII, Justice Kavanaugh further noted:

it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Some have said that this ruling is evidence of the shift in American opinion on the status of gay, bisexual and transgender people. I think that is a mischaracterization of the role and process of the Supreme Court, and helps to perpetuate the myth that the Court makes decisions based on politics or popular opinion. While I do believe that motivated reasoning lies behind the dissents to a large degree, the majority opinion and the dissents consider well-recognized means of interpreting statutory language, and are not – at least overtly – expressions as to the morality of the underlying law or its application. It is Congress’ job to pass laws; the courts are to interpret them, not remake them as they would wish the law to be.

Finally, this case is by no means the end of litigation over the rights of gay, bisexual and transgender people. In particular, there remains a question of how anti-discrimination laws will intersect with the First Amendment right to the free exercise of religion. In this coming term (which starts in October), the Supreme Court will hear a case brought by Catholic Social Services, which was prohibited by Philadelphia from participating in the city’s foster-care program because it barred same-sex couples from serving as foster parents. Here two fundamental rights – to be treated equally and to be able to follow your religious principles – are in conflict, and the Court will have to decide which one prevails.

In the meantime, it is now settled that employment discrimination on the basis of sexual orientation or gender identity is illegal throughout the United States. To those who celebrate equality, this is a milestone to remember.