The majority opinion by Gorsuch upending more than five decades of prior precedents was only 33 pages long. Alito, joined by Justice Clarence Thomas, filed a blistering dissent in which he said that “there is only one word for what the Court has done today: legislation.” He pointed out that the majority’s claim that it is “merely enforcing the terms of the statute” is “preposterous.”

In what dissenting Justice Samuel Alito called one of the most “brazen abuse[s]” of the Supreme Court’s authority, a six-member majority of the court led by Justice Neil Gorsuch has rewritten Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity in the definition of “sex.”

Why bother trying to pass the proposed Equality Act when you can get the justices to make law for you?

Title VII prohibits an employer from failing or refusing “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.”

Gorsuch—joined by the four liberal justices, along with Chief Justice John Roberts—decided that employment decisions that take any account of an employee’s sexual orientation or gender identity necessarily entail discrimination based on sex in violation of Title VII.

In Bostock v. Clayton County, Georgia, which was combined with two other cases, Gorsuch wrote that the straightforward application of the terms in Title VII, according to their ordinary public meaning at the time of its enactment, means that an employer violates the law when it intentionally fires an individual based in part on sex.

In a logical and legal leap, Gorsuch then argued that includes sexual orientation and gender identity, since those concepts are related to sex.

Thus, Gorsuch reasoned, it means the employer is treating individuals differently because of their sex. An employer cannot escape liability by showing that it treats men and women comparably as groups. The employer has violated the law even if it subjects all male and female homosexual and transgender employees to the same treatment.

Gorsuch dismissed as irrelevant the historical fact that none of the legislators who passed the Civil Rights Act in 1964 would have ever expected or contemplated that Title VII’s ban on employment discrimination on the basis of sex would apply to a man hired by a funeral home who then told his new employer, the R.G. & G.R. Harris Funeral Home, that he planned to “live and work full-time as a woman.”

That was one of the three cases before the court. That provision of the 1964 law was intended to stop the blatant employment discrimination rampant against women at that time.

The majority opinion by Gorsuch upending more than five decades of prior precedents was only 33 pages long. Alito, joined by Justice Clarence Thomas, filed a blistering dissent in which he said that “there is only one word for what the Court has done today: legislation.” He pointed out that the majority’s claim that it is “merely enforcing the terms of the statute” is “preposterous.”

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