Bostock Initial Review: A Mixed Bag

I'm quite happy that my gay and trans friends will not have to worry about being jobless because someone discovers their sexual orientation or gender identity. That being said, I see the decision as a mixed bag.

I’ve finished my first pass at the U.S. Supreme Court decision in Bostock v. Clayton County on whether sexual orientation and gender identity fall within the meaning of “sex” in Title VII. In a majority decision written by Trump nominee Justice Neil Gorsuch, the Court held: “An employer who fires an individual merely for being gay or transgender violates Title VII.” As a policy matter, I’m quite happy that my gay and trans friends will not have to worry about being jobless because someone discovers their sexual orientation or gender identity. That being said, I see the decision as a mixed bag.

As an initial matter, my list of opinions, in the order in which I found them compelling (most to least):

1. Kavanaugh dissent
2. Gorsuch majority
3. The unpublished RBG opinion (would consider moving up if I’d read it)
4. Alito dissent

Trust me, I’m very willing to have my mind changed. Some thoughts on the opinions:

(I) I found it hilarious that all three opinions are competing over who has the real judicial restraint. The majority opinion and both dissents were written by “Conservative” justices. In their opinions, each fought over who had the best approach to statutory interpretation: the “ordinary (public) meaning” of the Gorsuch majority, Alito’s “ordinary meaning” (constrained by the foresight of the legislators), or Kavanaugh’s “plain meaning.” In their opinions, the Justices are jumping over one another to proclaim themselves the true Conservative interpreters. Meanwhile, the Court’s Liberal bloc seems pleased to sit back and let the Conservatives fight this one out.

(II) The portion of the Alito dissent which I found most compelling was his discussion of Price Waterhouse on sex stereotyping. After oral arguments, I thought the case would turn on treating adverse employment actions against gay persons as a form of sex stereotyping. The impermissible stereotyping would occur when treating employees adversely based on how you think men or women should behave generally. For example, an adverse employment action against a gay man would be stereotyping based on a belief that men should be (or act) straight. But Alito helpfully points out that under Price Waterhouse v. Hopkins, while stereotyping can be evidence of sex discrimination under Title VII, it is not necessarily such discrimination itself. The Court in Price Waterhouse said that “the plaintiff must show that the employer actually relied on her gender in making the decision.” In addition, the opinion in Price Waterhouse discussing sex stereotyping was a plurality decision and thus not binding.

(III) One could view the development of Title VII through a lens of under-inclusion or through a lens of over-inclusion. The majority points out that Congress could have prohibited sex discrimination “solely on the basis of” or “because of” or “primarily because of” sex, to have a more restrictive view of the discrimination. Gorsuch writes: “Congress could have taken a more parsimonious approach.” But the clause is more inclusive. Because of this, the majority sees “on the basis of sex” as a phrase tending towards over-inclusion. The dissents counter by saying that Congress, rather than the Court, should be responsible for “expanding” Title VII to include sexual orientation and gender identity.

Though the majority doesn’t make this argument, I wonder whether a contrary argument could be made. Given the allegedly expansive view of the “on the basis of,” could it be argued that it would be the responsibility of Congress to explicitly exclude, rather include, these? If Congress had taken that more “parsimonious” approach, then we would clearly see legislative intent (and the language of Title VII itself) as tending towards a more restrictive approach to protections. But we see, instead, a broader approach. So perhaps it would be the responsibility of Congress to create carve-outs, rather than inclusions?

(IV) I find the majority’s argument that we shouldn’t get caught up in the intent of legislators and focus instead on the “plain meaning” compelling. This makes sense after having spent years doing corporate contract negotiations, where various persons want language for competing reasons, but ultimately what you have left is the text of the compromise, to which those competing goals and perspectives must yield. Acts of Congress don’t come out of one single motivation or intention. Rather, they come about through a process of competing motives and ideals. Therefore, trying to get into the “mind of Congress” would to a certain degree be a fool’s errand, and it would be more consonant with the legislative process to focus on the text itself.

Similarly, I found Alito’s version of “ordinary meaning” to be bizarre. He seems to argue that, because no one at the time of Title VII’s passage would have been familiar with the terms “sexual orientation” or “gender identity” as they are understood today, that such terms should never be permitted to fall under the purview of Title VII. He says, “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 sexual orientation–not to mention gender identity, a concept that was essentially unknown at the time.” It seems to me that Alito is arguing that no Acts of Congress should be allowed to have unintended or unforeseen consequences. Such an approach to interpretation would cut off significant portions of case law in nearly every area of the law. The Fourth Amendment couldn’t rule on wiretapping, the First Amendment would have nothing to say about the Internet, and Title VII certainly wouldn’t condemn sex stereotyping or (as the majority notes) sexual harassment of men. Part of adopting a text is adopting its unforeseen consequences, something which Alito fails to grasp.

(V) I rolled my eyes at first at Alito’s distinguishing between discrimination against homosexual persons and discrimination against men who are attracted to men. But upon further review, I actually found it helpful. He asks us to consider four employees:

  • a man attracted to men (fired)
  • a woman attracted to men (employed)
  • a woman attracted to women (fired)
  • a woman attracted to men (employed)

In these employment decisions, it wasn’t the gender of the person to which one is attracted which results in the firing, but rather the fact that one is attracted to the same sex. It’s a very subtle distinction, but it’s a helpful and clarifying distinction nonetheless. The distinction is so subtle, that it took me multiple readings to grasp it.

(VI) Ultimately, I share the concern held by both the majority and the dissents about legislating through the judiciary. The American people should be able to rely on the text of the law when they bring it to court, rather than revisions and creations of judges (in contrast to interpretations and developments arising from interpretations). And this is where I find Kavanaugh to be most compelling. Congress considered the addition of “sexual orientation” multiple times. The House voted in favor of this addition in 2007 and 2019, and the Senate voted in favor in 2013. The United States just needs these votes to be overlapping for the change to take effect. The law has been moving towards protecting LGBTQ persons, but the legislature has not quite reached the moment.

The judiciary has consistently recognized this. Prior to 2017, 30 federal judges considered whether Title VII includes sexual orientation, and all 30 said no. If the public could be said to rely on the law, surely it would be the law that has gone through this process and has been awaiting legislative action. Now every federal law may be subject to a sweeping and non-legislative insecurity. I worry with Kavanaugh that the “plain meaning” presented by the majority requires expanding this decision to every federal statute, and likely even to Equal Protection cases. I fail to see how it could be otherwise, unless Congress (1) issued an Act defining sex to exclude sexual orientation and gender identity in previous Acts and (2) ratified a Constitutional amendment. In another strong argument, Kavanaugh astutely points out that cases like Obergfell would have had a much easier time with the interpretation of sex used by the majority in this decision, which the Court hadn’t even contemplated then.

Kavanaugh argues that Congress could have amended Title VII to include sexual orientation, and it seems that Kavanaugh believes that Congress should do so. But it hasn’t yet. I share Kavanaugh’s worry that Bostock establishes not only protections for LGBTQ persons, but a reallocation of Constitutional powers. Now we have:

  • a judiciary trying to act as the legislature,
  • an executive trying to act as the legislature and the judiciary, and
  • a legislature that appears less effective at doing its job than the other two branches.

(VII) Religious institutions need to relax.

(VIII) Trump’s promise to his Conservative supporters, as it relates to the Court, is not bearing out. We’ve already seen Kavanaugh side with Planned Parenthood in his first abortion-related case, and the majority in Bostock was written by Gorsuch. The employers who lost in Bostock were represented by the Conservative religious powerhouse firm Alliance Defending Freedom, putting Trump’s nominee squarely at odds with a core portion of Trump’s base. It’s also worth noting that, while Kavanaugh dissents for interpretive reasons, he ultimately praises the policy outcome of the case. Kavanaugh writes:

“Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

If Republicans believe that protecting religious liberty requires excluding “sexual orientation” and “gender identity” from Title VII protections, then neither Trump nominee is their friend.

(IX) The USCCB needs to get its priorities in order.

(X) Alito’s arguments frequently undermine one another, even if the history of gay disenfranchisement he lays out is helpful. I think this may be one of the dangers associated with writing an overly long dissent.

(XI) Another interesting perspective:

Chris Damian is a writer, speaker, attorney, and business professional living in the Twin Cities. He received his B.A. in Philosophy from the University of Notre Dame and his J.D. and M.A. in Catholic Studies from the University of St. Thomas. He is the author of “I Desired You: Intellectual Journals on Faith and (Homo)sexuality” (volumes I and II). He is also the co-founder of YArespond, a group of Catholic young adults seeking informed and holistic responses to the clergy abuse crisis. In his free time, he enjoys hosting dinner parties and creative writing workshops. 

2 comments on “Bostock Initial Review: A Mixed Bag

  1. Pingback: The Bishops and Bostock: Considering Sex and Sexual Orientation – Chris Damian

  2. Pingback: What is the role of a diocesan attorney? – Chris Damian

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