Even granting what the Court claims about “the ordinary public meaning” of the Title VII statute, the notion that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” is just flat-out confused. It’s a bad ruling that will have very harmful consequences (and not just for religious employers).
Yesterday, the Supreme Court of the United States, in the case Bostock v. Clayton County, Georgia, ruled in a 6-3 decision that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees on the basis of sexual orientation and gender identity.
The Court’s opinion was written by Justice Gorsuch and joined by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito wrote a dissenting opinion, joined by Justice Thomas. A second dissenting opinion was given by Justice Kavanaugh. All three opinions can be read in full here.
The relevant statute of Title VII reads as follows:
It shall be an unlawful employment practice for an employer … to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…
The Court argued, in effect, that discrimination based on sexual orientation or gender identity necessarily involves discrimination based on sex (properly understood as biological sex: male or female) and thus is prohibited by Title VII.
I’m neither a lawyer nor the son of a lawyer, but I know a thing or two about logic and argumentation, so I want to explain, as clearly and concisely as I can, why I think the Court’s central argument is horribly confused and specious.
If we’re going to criticize the Court’s opinion, however, it’s important to recognize how the Court argued. Some commentators have objected to the ruling on the basis of the harmful consequences it will have (undermining protections for women using bathrooms and locker rooms, destroying women’s sports, etc.) but that misses the proper role of the Court. The Court’s task is to interpret the law; in this case, the relevant clause of Title VII. If it turns out that the law has unforeseen or unintended consequences — harmful consequences — surely that’s a fault with the law, to be remedied by the legislative branch, not a fault with the judicial ruling.
Other commentators have argued that the original legislators couldn’t plausibly have understood Title VII to prohibit discrimination on the basis of sexual orientation or gender identity, nor could they have foreseen that it would be applied in that way. However, Gorsuch directly addresses that objection in the opinion. His contention is that it’s a logical implication of the text of the statute, regardless of whether anyone at the time recognized it. His argument is simply that the text as it was written, reasonably interpreted according to standard dictionary definitions, protects against SOGI discrimination precisely because it protects against sexual discrimination. The latter logically demands the former, so he maintains. The complaint that no one in 1964 would have acknowledged such an implication is legally irrelevant. What’s relevant is that it is in fact an implication of the statute. (Gorsuch cites various precedents where a statute is later applied beyond its originally intended scope on the basis of its implications.)
So what exactly was the Court’s central argument? After establishing the meaning of the words “sex,” “because of,” and “discriminate” in the original context of the Civil Rights Act, the Court concludes:
From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. (p. 9)
That’s uncontroversial as far as it goes. What’s controversial is the next plank of the argument, on which the entire ruling hangs. The Court proceeds to argue that discrimination based on sexual orientation or gender identity necessarily involves discrimination based on (biological) sex. That this is the lynch-pin of the argument is clear from how often the point is repeated in the opinion (bold added for emphasis):
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. (p. 9)
There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. (p. 11)
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. (p. 12)
When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. (p. 14)
But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. (p. 15)
By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. (p. 19)
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. (p. 19)
As I say, the entire ruling hangs on this alleged logical connection between one kind of discrimination (sex-based) and another kind (SOGI-based).
How then does the Court argue the point? First, it articulates a sufficient condition for violations of Title VII:
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. (p. 9)