A Quick Look at Bostock
vs. Clayton County, Georgia
I present here a legal analysis of the majority opinion in the US Supreme
Court case of Bostock vs. Clayton County, Georgia. First a couple of
disclaimers. I am not a lawyer. I used to be a lawyer. I have a law degree and
many years of legal experience. I resigned from the bar after I switched
professions and became a church pastor, but I lost neither my legal education
nor my legal experience when I did that. Second, I fully and enthusiastically
support the outcome of the Bostock case. I have been committed to and
advocated for the equal rights and dignity of LGBTQ people for decades. I
intend nothing I say here to contradict that conviction and that support. This
is a legal analysis only not a policy position piece. It has happened before
that the Supreme Court reached a result I like through a legal analysis I don’t.
I have read Justice Gorsuch’s majority opinion in the case. I have read only
the first line of Justice Alito’s dissenting opinion and have read none of
Justice Kavanaugh’s lengthy dissenting opinion.
On June 15, 2020, the United States Supreme Court issued its decision in
three combined cases that we can refer to by the name of the first of them the
court listed in the caption of its decision, Bostock vs. Clayton County,
Georgia. In each of the three cases an employee was fired from employment
solely because the employee was either homosexual or transgender. The
employers, a Georgia county, a Michigan funeral home, and a New York sky diving
school, did not contend that there were other, nondiscriminatory reasons for
the termination of the plaintiffs’ employment. No employer argued that their
firing of the employee was permissible because of the employer’s religious
convictions.[1] All
plaintiffs contended that their termination violated Title VII of the Civil
Rights Act of 1964, which prohibits discrimination in employment on the basis
of sex. In Bostock the United States Circuit Court of Appeals for the
Eleventh Circuit held that Title VII of the Civil Rights Act does not apply to
employment discrimination on the basis of homosexuality. In the other cases Six
Circuit Court of Appeals held that it does apply to employment discrimination
on the basis of transgender status and the Second Circuit Court of Appeals held
that it does apply to employment discrimination on the basis of homosexuality.
The losing parties in all three cases applied to the United States Supreme
Court for a writ of certiorari, the most common procedure through which a case
gets to the Supreme Court. The court granted the applications, issued the
writs, and decided all three cases together. It is a 6 to 3 decision. Justices
Gorsuch, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan formed the majority
whose decision decided the cases. Justices Alito, Thomas, and Kavanaugh
dissented.
The sole legal issue in the cases was whether or not the prohibition of
employment discrimination on the basis of sex in Title VII of the 1964 Civil
Rights Act applies when an employer makes an adverse employment decision
against an individual on the basis of the individual’s homosexuality or what
the majority opinion mostly calls transgender status. Although the statute in
question mentions neither homosexuality nor transgender status as protected
classes the majority held that Title VII does apply to such cases. The minority
asserted that it does not.
Justice Gorsuch wrote the majority opinion. It is about 33 pages long. It
covers a lot of issues. It analyzes and rejects the employers’ arguments as to
why Title VII does not apply in these cases. Despite the length and complexity
of the opinion—Supreme Court opinions are notoriously long and complex—the basic
legal issue here is simple to state: Does Title VII’s prohibition of
discrimination on the basis of sex apply to these cases or not? Justice Gorsuch
and the majority of the court found that it does.
The issue in these cases comes down essentially to what “sex” means in
Title VII. There are several issues that can come up in any case in which a
court must interpret a statute. The court’s task is to determine the meaning of
the statute from the meanings of the words the legislature used in the statute.
The basic rule is that the court will use the common, customary meaning of any
word. Courts often look up words in a common dictionary like Webster’s to find
the meaning of a word at issue. The court will look first at what the word
meant in general usage at the time the statute was enacted. This rule is
usually straightforward enough, but there are issues that sometimes arise.
Sometimes a word a legislature has used the meaning of which is necessary
to the court deciding the case before it may be vague or ambiguous. A word is
vague if the court cannot determine what it means. A word is ambiguous if it
can mean two different things equally well. When a court finds that a word
whose meaning in a statute the court must know to decide a case is either vague
or ambiguous the court will look to the legislative history of the statute in
an attempt to discover what the legislature that passed the law meant by the
word. Legislative history is irrelevant if the meaning of the word is clear. The
legislative history of a statute consists of any information the court can find
that sheds light on the legislature’s meaning when it passed the statute. It is
often not easy to find. It may include transcripts of hearings on the bill or
other documentation generated in the course of the legislature’s consideration
of the bill. If a court believes that it has discovered the legislature’s
meaning of a vague or ambiguous word or term it will use that meaning in
deciding the case before it. In rare cases a court simply may not be able to
determine what a word in a statute means. In such a case the court may rule that
the law is so vague or ambiguous that it cannot be enforced because no reasonable
person would know what it prohibits, ordains, or permits.
Sometimes there is an issue about the common meaning of a key word in a
statute having changed between the time when the law was enacted and the time
when the case before the court arose. In these sex discrimination the court could
have considered if the common meaning of “sex” as used in the statute in
question had changed between 1964 when the law was passed and a few years ago
when these cases arose. It did not do so.
There are two schools of thought about what a court is to do if it finds
that the meaning of a word necessary to the decision of a case has changed in
that way. Conservative jurisprudence holds that the words of a statute (or constitution)
mean what they meant when the statute (or constitution) was enacted and nothing
else. For conservative jurists it is generally irrelevant that a word might
have meant something different when the case before it arose than it did when
the law in question was passed. The word’s meaning when the statute was passed
controls. This approach is often called “strict constructionism.” Other
jurists, especially more liberal ones, will say that because a society’s values
and the issues and circumstances of life change over time the court must use
the definition of words in common use when the case before the court arose
rather than an older meaning in use when the law was enacted. Strict
constructionism tends to lock the meaning of laws down to what they meant
perhaps decades or more ago. To conservative jurists that’s fine. They will say
that if the meaning of a word needs to change for a law to be just today it is
up to the legislature that passed the law not the courts to change it. The more
liberal approach to the issue of a changed meaning of a word in a statute gives
the court more flexibility in deciding how an older statute (the Civil Rights
Act of 1964 is now 56 years old) applies to a contemporary case. The US Supreme
Court usually has justices on it on both sides of this issue.
In his majority opinion in the Bostock case Justice Gorsuch,
generally a very conservative justice, said the he would use the meaning of “sex”
as used in the Title VII of the 1964 Civil Rights Act at the time that act became
law. His opinion begins with such a strong insistence that the meaning of “sex”
in 1964 is all the court need know that one suspects that he is headed toward
the opposite conclusion to the one he actually reached. He concluded that as
used in 1964 the word “sex” covered and included issues around homosexuality
and transgender status. He conceded that Congress very probably had neither
homosexuality nor transgender status in mind when it passed the law. He said
however that what Congress had in mind is irrelevant because the meaning of the
word it used is clear as it applies to the cases before the court. The word
sex, he said, clearly covers these cases dealing with homosexuality and
transgender status.
My main criticism of Gorsuch’s opinion is that he insists that in 1964 the
meaning of “sex” was plain and that it included homosexuality and transgender
status. It is not at all clear to me that people 1964 would generally understood
that to be the case. As I read Gorsuch’s opinion I found that conclusion
difficult to accept though certainly not because I don’t like the result the
Court reached. It seems to me that “sex” generally refers to the male/female
distinction inherent in what it is to be human. Gorsuch could perhaps have made
his conclusion stronger by making a distinction between sex (the word Congress
used) and gender (which Congress did not use). He could have concluded that
gender was the narrower term applying to the basic physiological differences
between male and female human beings. He could have said that sex is a broader
term than gender and covers all issues relating to human sexuality. He reached
and used that broad meaning of sex without distinguishing it from gender. Gorsuch
explained how he claimed to approach the meaning of the word sex by saying that
Court has “explained many times over many years that, when the meaning of the
statute’s term is plain, our job is at an end. The people are entitled to rely
on the law as written without fear that courts might disregard its plain terms
based on some extratextual consideration.” At least in these words he made it
clear what he claimed to be doing.
Although I found Gorsuch’s reasoning in this respect hard to accept he
did say one or two things that make his conclusion that as used in the statute
sex applies to these cases seem more reasonable. He said for example that one cannot explain either homosexuality
or transgender status “without using the words man, woman, or sex.” He also
said that because you can’t discuss the nature of the issue before the court
without mentioning sex the term sex in the statute covers homosexuality and
transgender status. He said that “it is impossible to discriminate against a
person for being homosexual or transgender without discriminating against that
individual based on sex.” Gorsuch rather clearly believes (or at least stated
in his opinion) that because both homosexuality and transgender status have to
do with sex the term sex in Title VII of the 1964 Civil Rights Act includes
both of them.
It seems to me that although the principle Gorsuch said he was using,
that we need deal here only with what he called the “plain meaning” of sex in
1964, is a conservative principle of statutory construction, what he actually
did with the word sex isn’t conservative at all. I cannot avoid the conclusion
that Gorsuch has given the term a meaning that it simply would not have had in
1964. In common usage the term sex traditionally refers to the physiological
categories male and female. That surely is what most everyone would have
understood the word to mean in 1964.
Of course people who are physiologically female or male (not to mention
the cases in which a person may not clearly be either on the basis of physiology)
have different sexual orientations. Sometimes a person who is born
physiologically female or male may for whatever reason self-identify so
strongly as the other sex that they live as the other sex and even undergo
medical procedures to change their physical sex. I have known both gay and
transgender people. They are simply people like anyone else who have to deal
with powerful personal issues that we cisgendered heterosexual people have never
had to deal with and can hardly imagine. I mean to say here only that I cannot
believe that in 1964 the common meaning of the word sex included those issues
the way Gorsuch says it did.
Let me say again that I am so strongly committed to the full equal rights
and equal dignity of homosexual and transgender people that I find it difficult
to say what I’ve said here. I am delighted that homosexual and transgender
people are now protected against employment discrimination everywhere in this
country and not only in states like Washington that have their own
nondiscrimination laws that protect them. I just wish Justice Gorsuch had
reached the right conclusion through better legal reasoning. He could have said
that the issues around sex in society today are not what people understood them
to be in 1964. He could have said that the term sex today covers homosexuality
and transgender status although in 1964 it did not. He could then have applied
today’s meaning of the word to the cases before him and reached the same
result. To do that however he would have had to abandon the core principle of
conservative jurisprudence that words in statutes (and constitutions) mean what
they meant originally and nothing else ever. He didn’t do that, and I assume
that he is simply incapable of doing it.
The minority justices in this case accuse the majority of legislating
rather than deciding a legal case because, they say, it greatly expanded the
meaning of sex beyond what it meant in 1964. That frankly is a hard charge to
deny. Yet the Supreme Court could be said to have legislated when it outlawed
racial discrimination in public schools, said the Constitution guarantees a
woman’s right to terminate a pregnancy, and that the Constitution prohibits
discrimination in marriage on the basis of the sex of the people seeking to
marry. That kind of legal legislating is much easier to defend when the Court
examines changed societal values and conditions as it did in Brown vs. Board
of Education. Gorsuch didn’t do that here. I wish he had.
[1] The
court left open the possibility that such a claim could be made in a future
case but did not decide the issue because no appealing party raised it in their
petition for a writ of certiorari.
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