A Supreme Court decision about the meaning of “sex.” Never a better time to say, IANAL! (I Am Not A Lawyer—what did you think I meant?)

My initial reaction to Bostock v. Clayton County was concern. Not because of the immediate outcome. I hope I’ve made it clear that I am a huge supporter of LGB rights. I can think of no right that accrues to heterosexuals that should not accrue to homosexuals, be it marriage, adoption, survivorship benefits, etc. If there is a good nonsecular reason for discrimination against LGB individuals, I can’t think of it. And though I have worries about transgender rights encroaching on the rights of others, particularly women, no one should be fired strictly on that basis either.

So I like very much the outcome of Bostock: Federal employment statues, specifically Title VII of the 1964 Civil Rights Act, now incorporate sexual orientation and transgender as protected classes (under the banner of the term sex). 

No, my immediate concern was that I didn’t understand the ruling. When it comes to Supreme Court decisions, as is true for many things in life, understanding is vitally important. Without knowing the “why” it’s impossible to apply the lessons and precepts of one decision to another. And Bostock didn’t make sense with the way I’ve understood the way the Court interprets the Constitution. 

A quick summary from CNN’s Supreme Court says federal law protects LGBTQ workers from discrimination

The 6-3 opinion was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts and the court’s four liberal justices. 

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” Gorsuch wrote.

This is undoubtedly true. If Tom loves Sally, and Mary loves Sally, and the employer fires Mary because of her sexual orientation but not Tom, Mary’s sex plays a definite role in that outcome. That’s is the essence of Gorsuch’s opinion, and it’s not wrong.

Looking only at the written words of the law and nothing else—a style of judicial interpretation called textualism—Gorsuch concluded that while sexual orientation and transgenderism are distinct from biological sex, it’s impossible to discriminate against either without invoking sex, at least a little, in that decision. Barring any other defenses—the defendants raised no religious objection, for example—that is impermissible in an employment context given Title VII. 

This approach to judicial interpretation collides strongly with the originalist interpretation that the Court has favored in many recent decisions. Justice Alito, whose dissent was far lengthier than the decision itself, applied an originalist approach. 

Alito’s dissent argues that there is no chance that when the Civil Rights Act was passed that legislators (or anyone else) took “sex” to mean sexual orientation or transgender. He’s not wrong. From his dissent: 

If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation — not to mention gender identity, a concept that was essentially unknown at the time.

Additionally, dissenters said the majority were amending the law, not interpreting it. From an originalist perspective, this appears very much like a justice making up his own interpretation of the law. No one in 1964 understood the term sex to mean “sexual orientation” or “gender identity.” So it’s easy to see why Alito rather flips out in his dissent. His approach to judicial decision-making seemingly no longer holds sway with conservatives like Roberts or Gorsuch. If true, he’s looking at writing a lot of dissents in the future and not a whole lot of opinions. Dissents, as you may know, carry the same legal weight as this blog, which is to say none whatsoever.  

(Interestingly, at least one commentator believes Chief Justice Roberts voted strategically in Bostock, and is actually far more aligned with Alito than this decision indicates. The reasoning is that Roberts saw the vote was going to be 5-4 and switched sides so he could, as Chief Justice, determine who wrote the opinion. Had Roberts been on the losing side, the senior justice for the majority would have been Ginsburg. She likely would have picked a writer with a more liberal and more expansive take on the case.) 

The allure of originalism, at least to me, is that it’s easy to understand and that it puts the onus of change on the Congress. I don’t want judges making up laws, “legislating from the bench” as its known, because legislation is democratic in ways that judicial fiat is not. We have a whole branch of government for passing laws, and it’s not the judiciary. If we want laws changed, Congress is the branch to do it. 

True, an originalist approach in the case of Bostock would mean a defeat for LGB and transgender individuals. But as early as next year, we could have had a victory when legislation is passed by Congress and signed by, god-willing, President Biden. This is not pie-in-the-sky. A bill to codify these protections passed the House last year (only to die in the GOP-controlled Senate). Such protections already exist in 22 states, and the movement “on the ground” so to speak is in that direction. It is unlikely that such legislation will be a priority now with Bostock

At any rate, in an originalist worldview, that’s how the US democratic process is supposed to work. This advantage of originalism is counterbalanced by the following notion: Human rights should not be subject to a plebiscite. 

That the framers of the Constitution and the authors of the Bill of Rights did not anticipate, say, Mormonism in the First Amendment should not mean that Latter-Day Saints require a special amendment to assure them freedom of religion. An originalist could argue that sort of thing in a way that a Gorsuch-style textualist never could.

Indeed, the most damning part of late Justice Scalia’s originalism was that he could find whatever he wanted and ignore the rest to support what judicial opinion he thought best (which was frequently rightwing and conservative). This is the judicial philosophy that gave us the craptastic Heller decision that continues to put guns in the hands of criminals to this day. And one need only look at Bush v. Gore to know that Scalia’s adherence to his own stated philosophy had its limits, and those limits were “I’m going to do what I want.” 

So Bostock has been an education in textual interpretation and may represent a much-needed sea change. The caveat to all this, of course, is that if Gorsuch’s textualism is truly politically agnostic, then it cuts both ways. He may be a hero of the progressive left today, but if he sticks to his principles, he may be a pariah tomorrow. That, too, won’t mean that he’s wrong. Just consistent. 

I, for one, am perfectly okay with that.