Today, the United States Supreme Court released their decision in Bostock v. Clayton County declaring that Title VII of the Civil Rights Act of 1964 prohibits discrimination on basis of sexual orientation and gender identity. This landmark decision clarifies that LGBTQ workers are protected from discrimination in all 50 states – even those without express protections for LGBTQ workers.
While we regret that Title VII’s protection for LGBTQ people was a topic for debate in 2020, LVBH is delighted that the United States Supreme Court has expressly recognized LGBTQ workers’ right to be free from discrimination in the workplace. Today as we celebrate, we also remember the lives of Aimee Stephens and Don Zarda, two of the plaintiffs in this case, who unfortunately did not live to see this righteous outcome. This case is vital step in the direction of gender and sexual orientation equality. Moving forward, Congress must pass the Equal Rights Act in order to secure comprehensive protections for LGBTQ people.
Writing for a 6-3 majority in the Bostock opinion, Justice Neil Gorsuch reasoned that, “an employer who fired 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.” Therefore, Justice Gorsuch concludes, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Although Justice Gorsuch, a President Trump appointee, is considered one of the most conservative justices on the Supreme Court, Justice Gorsuch applied his usual textualist approach to arrive at this result. Textualism is a formalist approach to legal interpretation that focuses solely on the plain meaning of the text rather than considering exterior factors like legislative intent. Employing this approach, the Court reasoned that Title VII’s use of the word “sex” is clear and controls the analysis – discrimination against people because they do not conform to employers’ views about what their “sex” should do is sex discrimination. The Court determined that the text of the statute so clearly yields this result, that there was no need to look further into the intent of the 1964 Congress. Ultimately, Justice Gorsuch remarked, “To refuse enforcement just because…the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”
While this textualist interpretation produces a favorable outcome for progressive values in this case, it is unlikely to yield such results in the future. Some liberal scholars warn that legitimizing Justice Gorsuch’s textualism is a conservative strategy to defend the interpretation that most often yields favorable results for conservative values. Opponents of the textualist interpretation advocate reading the Constitution as a living document that’s language adapts as time and context changes. Meanwhile, conservative thinkers are aghast at Justice Gorsuch’s progressive-leaning opinion. Many conservatives are questioning question whether Gorsuch actually applied a textual analysis in this case. The three most radically conservative justices, Alito, Kavanaugh, and Thomas, dissented to Justice Gorsuch’s opinion.