Landmark LGBTQ+ rights decision handed down by Supreme Court
"An employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VI."
On Monday, June 15, 2020, in Bostock v. Clayton County, the Supreme Court ruled that it is discriminatory in violation of Title VII for an employer to fire an individual merely for being gay or transgender.
The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justices Samuel A. Alito penned the dissent, with Clarence Thomas, and Brett M. Kavanaugh joining.
Let’s talk about it.
The decision
At the heart of the case was Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the employment context based on “race, color, religion, sex, or national origin.” In relevant part, Title VII makes it:
unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.
This is how it works:
a statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
We already know (just from the language of that statute) that you can’t discriminate on the basis of sex—the real question is how does sexual orientation and transgender identity fit in?
Well, the Court reasoned that:
because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.
Quick and important detour: Justice Gorsuch, a known textualist was asked to pen this opinion. Being a textualist means that when Justice Gorsuch is interpreting what a certain law means he will only look at the four corners of the document. In other words, he only cares about the words on the page and won’t consider Congress’ intent, what Congress was saying when it was trying to get the law passed, or other outside tidbits of information. The point of being a textualist is to make sure that Congress is careful with its words and that courts do not act as legislators by creating new laws through rulings (you know, that whole separation of powers thing). In Justice Gorsuch’s own words:
After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.
It’s super fascinating that Justice Gorsuch wrote the opinion because, as you can see from the text of Title VII above, the words “sexual orientation” and “transgender” are nowhere to be found. How did a textualist find that “sex” encompassed sexual orientation and transgender status without it being explicitly written into the statute?
Check out this example that he posed:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.
Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
From a pure logic-based perspective, this argument makes sense to me and one I had never before considered. Moreover, it fits squarely within the statute from a textualist perspective because sex does play a part in the employment decision, which is what our law prohibits.
Here’s another example:
Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee.
And another (Gorsuch likes examples, I guess):
When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.
This is a big win for the LGBTQ+ community. As the New York Times put it, “The decision, covering two cases, was the court’s first on L.G.B.T. rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions.”
What the Supreme Court did NOT do
Real quick, before I get to my takeaways, I want to take a second and explain what this ruling did and did not do, because I see things like the below, which are just not accurate:
I mean, like, I’m not going to hold it against a UK company for getting our laws and stuff wrong, but I have seen a few posts where people think this was a constitutional thing but, to be clear, this case had NOTHING to do with whether discrimination was constitutional or not. Here’s some quick bullets:
This case interpreted a statute, namely, the Civil Rights Act of 1964;
This case did NOT interpret the Constitution of the United States;
Not everything that the Supreme Court does involves something being constitutional;
The 14th Amendment doesn’t matter here because the litigants were not arguing whether the Civil Rights Act of 1964 was constitutional, but rather how broad the protections afforded under the Act were (which they assumed was constitutional);
This ruling applies to all businesses, even Hobby Lobby.
Takeaways and thoughts
There’s been a lot of backlash (understandably) to Justice Alito’s dissenting opinion, particularly directed at Justice Kavanaugh, lol:
I mean, yeah, this is to be expected. You voted against treating human equally. It’s a no-brainer that you’re going to get smacked around on social media. I don’t think anyone on Earth that has a heart and a conscience would say that they don’t want to see all humans having equal rights.
But there’s a lot more to this case than just a vote. There’s a lot more to EVERY case than just a vote. At the heart of each decision, of each vote, is an institution that needs to be respected and a process that needs to be protected. If we don’t respect the judicial process or the fundamental, founding principles of our legal system, the decisions become arbitrary and the judgments won’t garner any respect.
This case, and the backlash specifically, underscores the dire need for people to be more critical of reporting with respect to what SCOTUS does or has done. People need to read the decisions to understand that the court isn’t just taking up social or political issues and picking a side. These are really technical, specific issues and folks ought to try to understand where each side is coming from, which is really a bigger point about political debate.
Too often, we just take the conclusion the way we like it and then throw rocks at anyone who comes to a different conclusion rather than trying to understand how they got there and work with them to make them accept our own.
There’s like no way that any of these people that Tweet mean things at Justice Kavanaugh actually read the opinion. I mean, I hope they did, but they probably didn’t.
If they had read the dissent, they would have seen that the conclusion is not that discrimination based on sexual orientation or transgender status is right or just or okay. The dissent’s conclusion was that Congress didn’t plug a very important hole when they made the statute, so at the time of this case, the law in America was that this sort of discrimination was not prohibited. This doesn’t mean that the case is closed and shut. Congress is free to pass a provision that overrules the Supreme Court’s interpretation, so vigilance in elections is still important for these issues even if the case came out the other way. In other words, the dissent is saying that there’s a loophole and Congress needs to plug it. In the eyes of the dissent (and in the eyes of many other judges and justices), a court’s job is NOT to legislate—that’s why we have separation of powers in the first place, so they refused to read into the statute language that Congress hadn’t written and dissented.
Let me know what you think in the comments.
Awesome read!