The Supreme Court’s decision on Monday outlawing anti-LGBTQ employment discrimination is a triumph for both the country and the court. It is a victory for the country because, in one fell swoop, the court granted vital protections to LGBTQ people in every state, making the United States a fairer, freer place. It is a victory for the court because the decision is an encouraging sign that the justices can still practice neutral and responsible jurisprudence without partisan influence. The six-justice majority was able to set aside its own potential biases and deliver an unequivocal endorsement of simple, rather obvious legal theory. By following the most straightforward path, the court reached a historic result that brings millions of LGBTQ people closer to full equality under the law.
Monday’s decision in Bostock v. Clayton County revolves around a question fraught with political ramifications: Does Title VII of the Civil Rights Act bar discrimination because of sexual orientation and gender identity? The law forbids discrimination “because of sex,” but does not mention LGBTQ people. Civil rights advocates have long argued, however, that it is not possible to discriminate against a gay, bisexual, or transgender person without taking their sex into account. So, when an employer engages in anti-LGBTQ discrimination, they are engaging in a form of sex discrimination under Title VII.
This argument rests on textualism, the theory—ascendant in conservative legal circles—that courts should look to the plain text of the law, not legislative history or congressional intent. Most scholars agree that Congress wasn’t thinking about LGBTQ people when it passed the Civil Rights Act in 1964. But Congress wasn’t thinking about a lot of things, including sexual harassment, which SCOTUS didn’t outlaw as discriminatory until 1986. Bostock therefore asks: When the text of a law leads to an outcome that Congress probably didn’t envision, should the court still follow the text to its logical conclusion?
In a breezy 29-page opinion, Justice Neil Gorsuch said, emphatically, yes. (Gorsuch was joined by Chief Justice John Roberts and the four liberals.) “An employer violates Title VII when it intentionally fires an individual employee based in part on sex,” Gorsuch wrote. “It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision.” And “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” He explained:
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.
To Gorsuch, this proposition was apparently so self-evident that he felt little need to elaborate much further. He cited several precedents stretching Title VII beyond Congress’ intent, including a decision prohibiting male-on-male sexual harassment. And he barely responded to Justice Samuel Alito’s raging, incandescent 54-page dissent, which balloons to 107 pages when you count a bloated appendix that includes several dictionary definitions of the word sex and an old enlistment application excluding gay men from the military. Where Gorsuch did bother to provide a retort, he was remarkably dismissive in the face of Alito’s fury, accusing him of adopting a “conversational” definition of sex and overlooking “the statute’s strict terms.” And he charged Alito and Justice Brett Kavanaugh with refusing to “enforce the plain terms of the law,” abandoning textualism in favor of a murky inquiry into what Congress might have expected.
Alito was clearly wounded by Gorsuch’s claim to the textualist high ground. He huffed:
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should “update” old statutes so that they better reflect the current values of society.
In reality, the majority did no such thing. Gorsuch’s critique is dead right: Alito does not want the court to stretch Title VII beyond its application—as expected by Congress in 1964—and that approach is not textualism. It is anti-textualism. It elevates the alleged mental processes of long-dead lawmakers over the ordinary meaning of words. Bostock was a hack test, a challenge to the conservative justices to stick by their principles even when they lead to a liberal outcome. Gorsuch and Roberts passed. Alito and Thomas failed. Kavanaugh’s more measured dissent argued that the court should’ve let Congress handle a matter of such importance. But, unlike Alito, Kavanaugh seems happy with the result, even congratulating LGBTQ people on winning a battle he thought they should lose.
A decision this monumental will have major ripple effects beyond the law, none beneficial to the president. In 2016, Trump rallied the Republican base by promising to appoint a staunch conservative to the vacant Supreme Court seat. The justice he ultimately appointed just delivered a landmark win to LGBTQ people. Some conservative evangelical voters may conclude that, in fact, Trump can’t be trusted to drag the court rightward, making them less tolerant of his other profane grotesqueries. At his campaign rallies, Trump has often boasted of delivering the Supreme Court to the right for a generation. That assertion may have a little less power after Monday.
But there will be plenty of time to gauge the political impact of Bostock. For now, it is worth celebrating both the decision itself and, in cautious terms, the court that handed it down. The Trump administration lobbied hard to bring the conservative justices into line on this case. But Gorsuch and Roberts stood their ground, refusing to kowtow to immense pressure from the conservative legal and political movements. They showed genuine integrity. And they gave the country a reason to believe that perhaps Trump has not permanently corrupted the Supreme Court after all.
