In a 6-3 decision, the Supreme Court upheld lower court decisions
banning LGBT discrimination.
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.”
Conservative activists took the news badly
. One comment (follow link for plenty more)
Gorsuch’s Monday opinion apparently enraged Carrie Severino, the president of the Judicial Crisis Network, an organization which reportedly spent $10 million to secure Gorsuch’s confirmation in 2017 and promised another $10 million to secure Justice Brett Kavanaugh’s in 2018. Severino accused Gorsuch of ruling “for the sake of appealing to college campuses and editorial boards” in “a brute force attack on our constitutional system.”
Yep, that's Gorsuch, always worried about what college campus editorial boards think.