By Aaron Shuchman ’21
In a country like the United States, no one should be discriminated against or treated unequally based on their gender identity or sexual orientation. On June 15, 2020, in Bostock v. Clayton County, the Supreme Court of the United States affirmed this principle. In a 6-3 decision written by Justice Neil Gorsuch, the Court ruled that Title VII of the Civil Rights Act of 1964, which protects individuals from discrimination on the basis of race, color, religion, sex, or national origin, necessarily protects individuals from discrimination on the basis of gender identity and sexual orientation.
This is a landmark decision because of the new protections that it provides, and its outcome is one with which millions of Americans, including myself, are thrilled. However, that does not mean that this ruling was made by the proper branch of government.
Congress should have passed legislation years ago that explicitly extended Title VII to cover discrimination based on gender identity or sexual orientation, to avoid the need for a 33-page decision with a 140-page dissent on the topic. Congress fundamentally failed in its duty to make and update laws, requiring the Supreme Court to wade into this debate in the legislative branch’s place.
While certainly enacting progressive change and long-overdue public policy, the Supreme Court’s decision stretches the interpretation of “sex” in Title VII, because Congress has not made it any clearer in the past 56 years. In so doing, the Court has legislated in the place of the legislative branch of our government. If Congress had properly executed its Constitutional duties in reforming and updating our laws to provide necessary discrimination protection, then this entire, yearslong legal saga would have been a moot point.
Many people, when asked as a matter of plain English, would not say that “sex” and “sexual orientation” are the same thing. Yet, at the core of the Supreme Court’s decision is a list of several examples to convince readers that discrimination “because of sex” necessarily covers discrimination based on gender identity or sexual orientation. Justice Gorsuch writes that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” He provides the example that if there are two employees identical in every way except their sex, and they both are attracted to men, and an employer fires the man for being attracted to men but not the woman for being attracted to men, then that is sex discrimination. In this case, the employer “discriminates against him for traits or actions it tolerates in his female colleague.”
In the case of transgender discrimination, Justice Gorsuch uses the example of a fired employee who identified as a male at birth but now identifies as female. Gorsuch explains that if an employer fires someone who was born male but now identifies as female and keeps someone who was born female and now identifies as female, he is discriminating against the male-born individual on the basis of their sex at birth. Another example he uses is if a company has a policy of firing any employee known to be homosexual. At an office holiday party where spouses are invited, a model employee brings a wife, Susan. “Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.” Gorsuch writes that while the intent in that situation is to discriminate against this employee because of sexual orientation, the employer must be discriminating because of sex on the way to that destination.
A further argument Gorsuch makes is the distinction between discrimination on the individual and group level. The defendants (the employers), in this case, do not dispute that they fired the plaintiffs based on their sexual orientation or gender identity. In the case of Bostock, the plaintiff fired for being homosexual, the defendants claim that they would have treated a woman who was attracted to a woman the same way (by firing her for being a lesbian). However, Gorsuch undercuts this by arguing that Title VII doesn’t care if an employer fires gays and lesbians equally; doing so would double its Title VII liability. Even though the employer may treat these groups the same way (by firing them equally), Title VII doesn’t care because discrimination is being committed on an individual level—a man loving a man and a woman in the exact same position would have been treated differently.
Despite the long overdue and necessary social changes that this decision supports, its legal logic requires some imaginative thinking to equate “sex” with “sexual orientation” and contradict. Justice Gorsuch is one of the leading advocates of textualism on the Supreme Court, which is the judicial philosophy of relying solely on the text of a law in its interpretation. His equating sexual orientation with sex is a clear departure from this professed philosophy. However, if Congress had properly expanded Title VII over the years and covered discrimination based on sexual orientation or gender identity, Justice Gorsuch’s departure from his textualist tenets would not have been necessary.
Justice Samuel Alito wrote in his dissent that this decision is an example of the court “legislating,” or updating statutes to fit current societal values—a legal approach that Alito, and most famously the late Justice Antonin Scalia, thoroughly repudiate. Alito does not state that he disagrees with the policy of protecting homosexual and transgender people from discrimination, but he does state that Title VII, as presently written, does not provide protections for homosexual or transgender people. He points out that in other laws passed by Congress in the years since the Civil Rights Act, sexual orientation has been written and defined explicitly, and its absence in Title VII but presence elsewhere is evidence that sexual orientation is not yet covered by Title VII. Moreover, Congress has taken up numerous bills recently that would update Title VII to include gender identity and sexual orientation, but they have not yet been signed into law. This is unfortunate, and all of us who celebrate the Supreme Court’s ruling should query why this Congressional update has not yet happened.
Similarly, Justice Brett Kavanaugh, elaborating on this point in his own dissent, argues that while the Civil Rights Act does not protect against discrimination against sexual orientation or gender identity, Congress should pass a law that fixes the problem. While it is no doubt morally and ethically wrong to discriminate against an individual or a group because of their gender or sexual orientation, Justice Kavanaugh notes that Title VII, as currently constituted, does not allow for those protections. He could not be more correct. It is not the proper role of the Supreme Court to take up the legislative mantle from Congress when they have failed, over a 56 year period, to update, reinforce, or at least more clearly define a statute that impacts millions of people on a daily basis. Regardless of how much I, or anyone else, may want the protections of Title VII to be fully applied to homosexual and transgender people, we should not applaud that Congress has passed this responsibility on to the Supreme Court, rather than embrace it itself.
While the outcome of this decision is certainly worth celebrating, its legal reasoning and justification is not.
The Supreme Court should not be deciding cases based on a desired outcome or to update laws to fit modern society; this is the role of Congress, who should not have left a hole for the Supreme Court to fill. It is a travesty that in the 56 years since the Civil Rights Act’s passage, Congress was unable to adequately update a critical statute that protects people from discrimination on the basis of their identity or pass a new set of laws that would have negated the necessity for the Bostock case in the first place. Justice Gorsuch’s “textual” argument and legislating from the bench is wrong, but Congress’ failure to act in the first place is worse.