Manuel Balce Ceneta/AP Photo
LGBT rights supporters stage a sit-in in front of the Supreme Court in Washington, October 8, 2019.
The big news in Tuesday’s Supreme Court argument, in cases on whether federal law protects LGBT people from job discrimination, is that one of the Court’s most conservative justices seemed genuinely torn. Neil Gorsuch isn’t ideologically disposed to favor LGBT claims, but he is also devoted to following a statute’s text wherever it goes—and here it points toward protection from discrimination. Given the notorious polarization of both the Court and contemporary America, that might be good news—if Gorsuch is really willing to be an honest textualist.
The issue in Bostock v. Clayton County and Harris Funeral Homes v. EEOC is whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The argument for protection is simple. An employer who fires women who date women, but not men who date women, discriminates on the basis of sex. Treating a woman worse because she is a woman is sex discrimination.
The Court’s liberals—Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor—all were evidently persuaded. Of the conservatives, John Roberts and Samuel Alito clearly signaled their skepticism. Brett Kavanaugh asked one question of uncertain political valence.
And as usual, Clarence Thomas said nothing.
The defendants’ employers had two principal arguments. The first contention is that in 1964, members of Congress did not intend to protect LGBT people. The second is that sexual-orientation discrimination is distinct from sex discrimination. Both are hard for Gorsuch to accept, because as a matter of legal philosophy he is committed to enforcing statutes as written.
Gorsuch embraces a theory of interpretation called textualism, which holds that laws should be interpreted only on the basis of a statute’s plain language, not what the authors thought but did not say. Textualism has been a convenient theory for conservatives because they can ignore what Congress intended and creatively construe laws to mean what they want them to mean. Thus, for instance, the 1925 Federal Arbitration Act, originally intended to encourage arbitration of commercial disputes, has been used to deny employees the right to sue for wage theft or violence on the job.
Sometimes, however, the text is clear and there is no wiggle room. The court has in the past construed sex discrimination broadly, to include sexual harassment and hostile work environments, even though neither was discussed by Congress in 1964. If someone is mistreated in these ways because of their sex, that is sex discrimination. As the late Justice Antonin Scalia, the leader of the textualist movement, explained when he held that same-sex sexual harassment was covered by the law, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
So even if the legislators would have been surprised to learn that they were protecting LGBT employees, that doesn’t matter. The words of the law prohibit sex discrimination. As Gorsuch wrote in his very first Supreme Court opinion, “while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.”
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The civil rights statute is clear. It prohibits discrimination “because of sex.” It explains that an employer has engaged in “impermissible consideration of … sex ... in employment practices” when “sex … was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.” The question a court should ask, the Supreme Court observed in 1978, is “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’”
So when the defendants claimed that the complaining employees were fired for their sexual orientation, not their sex, Gorsuch responded that “the language of the statute has a but-for-causation standard, a more generous causation standard. So perhaps there are two causal factors at work here. But isn’t one of them sex in the narrow sense of … biological gender?” Again: “in what linguistic formulation would one—would one say that sex, biological gender, has nothing to do with what happened in this case?”
Those who oppose this argument, including the Trump administration, have tried various strategies to evade this result: They rely for example on distinctions between “sex” and “homosexuality” that feel familiar but which do not appear in the statute, or the general expectations that were part of the law’s cultural background. All of these strategies are at war with the imperative to follow the text. None of the Court’s five conservatives has ever voted to support a LGBT rights claim. In this instance, their conservatism is in deep tension with their textualism. The plain language of the law points to a result that they’re not politically inclined to like.
So this case is a good test of whether textualism can keep judges from following their own political preferences, as Scalia always claimed it would. This is a consideration that ought to worry all of them, although Gorsuch is the only one who was visibly moved by it.
Gorsuch’s principal articulated reservation about the argument had nothing to do with the text. It was that protection of LGBT people—and particularly protection of transgender people, who raise the delicate question of access to toilets and showers—is a big policy decision that shouldn’t be made by a court: “something as drastic a change in this country as bathrooms in every place of employment and dress codes in every place of employment that are otherwise gender neutral would be changed … that’s an essentially legislative decision.” Even Justice Breyer, who otherwise was friendly to the LGBT claim, conceded that this was “the elephant in the room.”
Justice Ginsburg responded that this wasn’t the Court’s first encounter with such elephants. “No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in ’64.” But the Court recognizes that now. Solicitor General Noel Francisco, representing the Trump administration, conceded that “that is a straightforward application of Title VII’s text.”
Elephant metaphors were on parade. Francisco cited Scalia’s declaration, in a 2001 Supreme Court decision, that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” If Congress meant to protect LGBT people, Francisco claimed, it would have said so.
The principle against sex discrimination is, however, itself an elephant, not a mouse. It audaciously proposes to attack an injustice that is present in every known civilization. It would be surprising if that broad project did not have surprising implications.
If the judges are going to look beyond text and worry about the political context, they should consider this. This case provides the Court with an opportunity to prove the cynics wrong, and to show that it really does take textualism seriously. Enforcing the statute as written would create a dramatic victory for the LGBT rights side, but the stakes are lower than in many Supreme Court cases. It would only accelerate the inevitable: A federal statute protecting LGBT people from employment discrimination is coming.
The Equality Act recently passed the House of Representatives. That is as far as it will get this year, because the Republicans control the Senate and the White House. But political fortunes shift and that won’t always be the case. The measure has already attracted Republican votes. Protection of LGBT people from employment discrimination, which is what Title VII offers, is supported by 92 percent of Americans.
Francisco warned the Court that “there are religious liberty issues at stake.” One question is whether religious organizations will be able to fire employees who do not conform to their ethical rules, which might include abstention from sex outside heterosexual marriage. (That’s not a legal argument, but it’s one that may move some of the justices.) But Title VII supports churches’ claim to the protection, against federal antidiscrimination law, of “all aspects of religious observance and practice, as well as belief.” The same textualist method that protects LGBT people also protects religious liberty.
Comments at argument are never a reliable predictor of how justices ultimately will rule next year. Yet Chief Justice John Roberts clearly is concerned about the Court appearing to be a partisan tool. He is so worried about the notion of Democratic judges and Republican judges that he was willing to get into a public argument with President Trump about it. An honest textualist reading of Title VII helps the Court with that problem. It confounds narratives on right and left about the partisanship of the Court. It would bolster confidence in the institution, and thus, in a small way, lower the level of polarization and distrust that is destroying American politics.
