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Contributed by Camille Williams
On Monday, June 15, 2020, in the 6-3 ruling Bostock v. Clayton County, the United States Supreme Court abandoned standard methods of judicial reasoning, equality for women, and plain old common sense. Three cases in which employers fired homosexual or transgender employees presented to the Court the question of whether Title VII of the Civil Rights Act prohibiting discrimination on the basis of sex applies only to biological sex, or also to sexual orientation and gender identity. (see: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf)
Justices Alito and Kavanaugh (in separate opinions) critique the majority’s tortured interpretation of “sex,” with Alito commenting that “the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.”
Legislating from the bench
Justices Alito, Thomas, and Kavanaugh agree that today’s Supreme Court majority opinion on three cases dealing with employment and sexual orientation is legislation, rather than judicial interpretation of the law. In Alito’s words, this opinion, which will impact at least 100 federal statutes and the laws of every state, may be in the “form of a judicial opinion interpreting a statute, but that is deceptive.” Justice Kavanaugh argues that the Court should not usurp the duties of the legislative branch, which has pending legislation addressing the issues decided by the Court today:
“In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway. If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty.”
According to Justice Alito, the short majority Opinion, surprisingly delivered by Justice Gorsuch, may be applauded by many “because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
Conflating “sex”, “sexual orientation”, and gender identity
In effect, the majority concludes – in contrast to Courts of Appeal and the EEOC – that the only reasonable interpretation of the language of Title VII banning discrimination on the basis of sex is that “discrimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex.” Justice Alito characterizes the majority’s argument as breathtakingly arrogant, noting that:
“every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex. And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law. Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of . . . sex” unambiguously means.”
Alito further explains that:
The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes…(“homosexuality and transgender status are distinct concepts from sex”). And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes…(recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes. And individuals who are born with the genes and organs of either biological sex may identify with a different gender.
SCOTUS – rewriting history
Justice Kavanaugh chides the majority for mixing together the separate histories of the women’s movement and the gay rights movement, noting that the majority:
. . . also rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.
In short, an extensive body of federal law both reflects and reinforces the widespread understanding that sexual orientation discrimination is distinct from, and not a form of, sex discrimination.
By contrast, this case involves sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Until now, federal law has always reflected that common usage and recognized that distinction between sex discrimination and sexual orientation discrimination. To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions.
A threat to women’s rights and religious freedom
Ed Whelan, the president of the Ethics and Public Policy Center, is correct in his assessment that the majority ignores the impact of this ruling on well-settled law and practice:
Rather than attempt to harmonize his radical new interpretation of Title VII with settled practices under that statute and other laws prohibiting sex discrimination, Gorsuch dismisses invocation of these settled practices as ‘naked policy appeals’ and as complaints about ‘undesirable policy consequences.’ But the longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes – all of which require taking account of an employee’s sex – severely complicates Gorsuch’s claim that any employer policy that requires taking account of an employee’s sex clearly discriminates on the basis of sex under Title VII.
Lamenting the unwillingness of the majority to consider the consequences of their new interpretation, Justice Alito briefly outlines some potential harms:
“The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm. Under the Court’s decision, however, transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes over time. Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.”
Justice Alito also points out that this decision will likely threaten to undermine one of Title IX’s major achievements of giving young women an equal opportunity to participate in sports:
“The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male. Students in these latter categories have found success in athletic competitions reserved for females.”
In addition, Justice Alito points out, the decision may lead: “to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX…allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies. Similar claims may be brought under the Fair Housing Act…”
Certainly, it will complicate employment decisions by religious organizations who need employees who faithfully live that entity’s religious teachings; it will chill free speech and open discussion about the relative merits of pronoun usage, various sexual relationships and body modifications for gender dysphoria, and as Justice Alito predicts, will mire the “entire Federal Judiciary…for years in disputes about the reach of the Court’s reasoning.”
A blow to representative self-government
The dissenting opinions are longer than the majority opinion in part because they actually cite the law and analyze it according to accepted methods of statutory construction. The dissenting Justices acknowledge that many Americans have worked toward the sexual right’s victory achieved today. Justice Kavanaugh cautions, however, that “[t]he Court’s ruling comes at a great cost to representative self-government. And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.”
The high court today rewrites both law and language, as Justice Kavanaugh points out:
“The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two.”
With this decision, the majority’s opinion not only undercuts the Constitution’s separation of powers, but it also undercuts the gains women have made in all areas of law. The cost to both will be incalculable.
The views expressed are those of the author and don’t represent her employer, any other person or entity.
Camille Stilson Williams (J.D., M.A., Brigham Young University) worked as part of the Family Law Research Project at the J. Reuben Clark Law School at Brigham Young University and has taught family law for undergraduates. Her research interests are related to women’s and family issues. Her publications have supported the sanctity of human life and the necessity of the natural family for the flourishing of individuals and societies. She currently works as an assistant city attorney.