We’ve all been there. The social version of a “cold call.” Your friends ask about a headline you haven’t had any time to read about. Maybe you were working, or maybe you were just enjoying time away from reading lengthy opinions.
Whatever the reason is, have no fear! I’m here to summarize one of the most important Supreme Court opinions of our time: Bostock v. Clayton County, Georgia.
On June 15, the most powerful court in America made it a federal crime to fire someone for being gay or transgender. Anyone doing so will now be in violation of that person’s Title VII rights.
Title VII of the Civil Rights Act of 1964 states that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his…sex…”
This decision is an unprecedented victory for LGBTQ+ Americans by expanding the term “sex” to include “sexual orientation” and “gender identity.” The Court effectively ends a deadlock over the Equality Act in the Senate and provides more protection for transgender and gay Americans in the workplace. However, some believe the Court’s amendment of Title VII is overstepping its boundaries, and that the Court acts as a legislature by effectively amending Title VII in an abuse of its power.
We have two Trump appointees at odds: Justices Neil Gorsuch and Brett Kavanaugh. Even more exciting for us legal nerds, they BOTH provide an opinion…grab your popcorn!
The Majority Opinion
The majority opinion, delivered by Justice Neil Gorsuch, begins by calling in our good friend from 1L: but-for causation. As we learned in Torts I, more than one but-for cause can legally exist. Gorsuch explains that the phrase “because of sex” in Title VII mirrors but-for causation in that there can be more than one “motivating factor” for discharging an employee.
“If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach,” writes Gorsuch.
Gorsuch provides an example.
“If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth,” he adds. “Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
Although the employers in these cases cited grounds for termination outside of the employees’ gender identities and sexual orientations, Gorsuch believes discrimination was still at play, no matter how they framed it.
“Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view,” he writes.
Chief Justice John Roberts concurred, along with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Both dissenting opinions had basically the same argument: the term “sex” used in Title VII is not the same as “sexual orientation” or “gender identity,” and the Court acted as a legislature by expanding its meaning.
Justice Samuel Alito provided his dissent with Justice Clarence Thomas concurring.
Alito is adamant that the Court abused its power by effectively updating legislation to reflect its own contemporary values. The Equality Act of 2019, passed through the House of Representatives, proposed to amend Title VII to include “sexual orientation” and “gender identity.” But the bill has remained in Congressional limbo since May 2019.
“The Court has greatly impeded – and perhaps effectively ended – any chance of a bargained legislative resolution,” writes Alito.
Alito believes the drafters of Title VII had no intention to protect transgender or gay Americans from discrimination.
“The plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment,” he writes. He ends his opinion with a warning that the Court has opened the floodgates to litigation of the “100 pieces of federal legislation” that include the term “sex.”
“Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is,” Alito adds.
Justice Brett Kavanaugh added two things to the dissent: First, that the U.S. has already distinguished “sexual orientation discrimination” from “sexual discrimination” in many facets of life. These areas include history, sports, HR departments, and state law. Second, that the Court rewrote the American definition of these terms to narrowly fit their own beliefs.
Again, this is only a summary. If you find yourself curious like me, I encourage taking the time to read the opinion! You can find the full text here.