The Supreme Court Adds Sexual Orientation and Gender Identity to Title VII

Two weeks ago, the Supreme Court ruled, as a matter of federal statute, employers cannot fire employees simply for being homosexual or transgender.  [Bostock v. Clayton County, Georgia] Justice Neil Gorsuch wrote the opinion for the Court.  The opinion purports to interpret the terms of Title VII of the Civil Rights Act of 1964 in accordance with their ordinary public meaning at the time of enactment.  Title VII forbids discrimination on the basis of, among other things, race, religion, and sex.  The parties agreed that the term “sex” in 1964 referred to the biological distinction between male and female.  So how does Gorsuch puff up the term ‘sex’ to include sexual orientation and gender identity?  The opinion is an amazing display of how the Court can turn night into day when it wants to reach a particular result.

Here’s the core of Gorsuch’s reasoning:  Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII which outlaws discrimination on the basis of sex.  Gorsuch is essentially saying that ‘sex’ is necessarily involved in discussing whether people are gay or transgender, so Title VII applies.  But people also breathe, so it’s like saying breathing is the key fact that decides the case.  The logic could be used to add discrimination against blonde people to the statute.  You can’t talk about blonde people without referring to the fact they are human beings who possess male or female sex attributes.  To take such a worthless truism - that all people are of the male or female sex - and use it to make law is preposterous.

Gorsuch goes on to drag in extraneous issues and declare that specific court precedents are binding when they don’t really apply to the matter at hand.  The whole thing is a house of cards built on judicial doctrines, nothing Congress did or said.  Gorsuch dismisses Congress entirely.  The employers argued Congress could have included sexual orientation and gender identity when passing Title VII, or add them at any time, but did not.  Gorsuch turns this on its head, saying Congress didn’t specifically exclude those categories so the Court is free to add them.  So much for the pretense that he is simply applying the original public meaning of these terms from 1964. 

The whole thing is ludicrous.  There’s lots of fancy dancing.  Gorsuch strains every step of the way, and that tells me something’s not right.  This is results-oriented jurisprudence at its worst.  It undermines federalism, by putting Washington in control of contentious social issues best left to the laboratories of the 50 states.  It weakens Congress as an institution and empowers the Supreme Court in ways the Founders never intended.  Cowardly Congress critters may be breathing a sigh of relief that this nettlesome political issue has been taken off their hands, but they are complicit in damaging the power of their own institution.  The Court’s opinion was all about statutory interpretation, not constitutionality.  Congress could reverse this decision, but don’t hold your breath.  As for the Court, Senator Josh Hawley and others are saying that it’s time to stop placing so much hope in nominating conservative Justices and to start figuring out how to rein in the runaway Court as an institution.  One solution that’s been put forward is a proposed constitutional amendment to give a super-majority of state legislatures the power to reverse the Court on constitutional questions, a solution I’ve mentioned before on these webinars.

There are lots of implications and questions arising from this decision.  First, I worry we have another Anthony Kennedy in the making, a Supreme Court Justice who doesn’t understand or doesn’t care it’s not the Court’s job to dabble in social engineering.  The fundamental dishonesty of Gorsuch’s opinion reminds me of the fundamental dishonesty of Anthony Kennedy’s opinions.  Also, it’s disturbing that Gorsuch has adopted the language of the Left in minimizing biological sex, portraying it only as something that is ‘assigned at birth’ and, therefore changeable when the truth of the matter is that it’s not changeable, not even with mutilating surgery and a lifetime of powerful drugs to suppress Mother Nature. 

Second, the Trump administration recently reversed an Obama-era rule restricting   transgender services in government healthcare programs, saying there was no statutory authority for the rule.    Arguably, the recent case is limited to its facts - the employment context - and does not apply the healthcare context.  But the Trump administration could easily decide to bow to the inevitable and abandon its transgender healthcare rule.

Finally, and of critical importance, the battleground now shifts to the question of whether religious employers, churches, schools, and charities are exempt from civil rights statutes like Title VII, or will have to comply with them.  There’s a showdown coming between religious liberty and gay and transgender rights.  Will religious institutions be forced to hire gays and transgenders in violation of the institution’s religious doctrines?  What about their conscience rights, and the fact that this entire country was founded by people who came here seeking religious liberty?  Is all that to mean nothing and we must now all comply with a new orthodoxy pushed on everybody by a tiny percentage of the overall population?  The day is not very far off when we will begin finding out what kind of country we really are.