Many conservative onlookers were stunned Monday morning when the conservative-majority Supreme Court released a 6-3 decision on a landmark gay and transgender rights case holding that protections for “sex” in federal civil rights law do extend to protect sexual orientation and gender identity, despite that not being explicitly stated in the law. Justice Neil Gorsuch and Chief Justice John Roberts, both conservatives, sided with the court’s four liberals to swing the decision, going with a strict textualist argument over appeals to originalism.
Although many conservatives may initially be shocked or dismayed at this ruling, they should hear Gorsuch out. His decision is based on razor-sharp logic, and it is entirely consistent with the conservative commitment to textualism — that the law means exactly what it says.
The first case, Bostock v. Clayton County, Georgia, concerned a gay employee, Gerald Bostock, who was fired from his government job after his employer found out he played in a gay softball league. A second case also considered in the decision, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, featured another plaintiff, Aimee Stephens, a biological male who identified as a transgender woman, who was fired from a funeral home for refusing to comply with the dress code for men — in essence, the case was a dispute over her transgender identity.
The question before the justices was whether protecting “sex” in Title VII of the Civil Rights Act of 1964’s employment anti-discrimination protections also meant these individuals were protected from discrimination on the basis of their sexual orientation and transgender identity. The argument against such extension of protections, which apparently the Supreme Court’s other conservative justices found compelling, is that the law doesn’t specifically say it protects sexual orientation and transgender identity from discrimination, and it most certainly was not the intention of mid-20th-century congressmen to protect transgender rights.
However, the argument in favor of gay and transgender protections is that you can’t discriminate against someone on the basis of their sexual orientation or gender identity without also discriminating against them on the basis of their sex.
For example, let’s say an employer fired me, a gay man, after discovering that I had a husband. That would be anti-gay discrimination, but it would also be a form of sex discrimination because the employer is punishing me for having a husband —something it would be perfectly fine with a female employee doing. Similar logic applies to transgender employees — that by firing a transgender person, such as Stephens, for choosing to follow the women’s dress code, you are applying a standard you would never have enforced against a member of the female sex.
Thus, strict textualists, such as Gorsuch, who believe the law means exactly what it says, not what either side wishes it said, rightly conclude that the only possible answer is that Title VII does protect gay and transgender employees from discrimination. This sweeping decision will likely make these protections the law of the land in all 50 states, many of which did not previously have them on the books.
This key portion from the decision explains the court’s ruling:
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 also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.
I have long said that conservative lawyers, such as the Trump administration’s Department of Justice, who argued against this interpretation, were not being “anti-LGBTQ,” hateful, or bigoted, as critics claimed. I even once agreed with their position. They simply advanced a position in a complicated legal debate that sought to see federal civil rights law interpreted as it was intended by the legislators who wrote it, even if that contradicts what the words of the law plainly state, and argued that Congress needed to pass a new law if it wanted to add protections for gay and transgender people.
That’s not an evil or immoral stance by any stretch. But as Gorsuch explains, it is wrong.
The justice says that we do have to rely on the “public meaning” of what the law meant at the time, and that in this case, that means biological sex. But he then argues that using that meaning as applied to the issue of gay and transgender discrimination, the protections are indeed still validated for the reasoning I’ve explained above. He writes that “homosexuality and transgender status are inextricably bound up with sex,” and that under the “but-for” standard the Supreme Court has previously established, it doesn’t matter if sex isn’t the only factor in the decision, it’s still protected by Title VII.
“The limits of the drafters’ imagination supply no reason to ignore the law’s demands,” Gorsuch writes in the decision.
Conservatives may, quite rightly, worry about what this decision means for religious freedom and faith-based employers. But Gorsuch explains that although this current set of cases involved no religious freedom claims made by the defendants, future cases will require the court to carve out exceptions to Title VII for bona fide religious institutions, as it has in the past. He is sure to note that the court is “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.” Gorsuch adds that the Supreme Court has already carved out an exception known as the ministerial exemption that does this for current Title VII protections and suggests that this can and will be expanded to protect religious freedom.
In short, we can have both protections for gay and transgender rights and religious freedom in a pluralist society. Gorsuch just showed us how.
Gorsuch surmises: “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
Brad Polumbo (@Brad_Polumbo) is a freelance journalist and a former fellow at the Washington Examiner.
