Textualist Gorsuch Finds Civil Rights Law Forbids Discrimination Against LGBT Americans

The Obama-Biden Administration extended numerous protections against discrimination to LGBT Americans. The Trump-Pence Administration has repealed most of those protections, including provisions for equitable treatment in health care repealed just last Friday. Where the Obama-Biden Administration was willing to accept that discrimination on the basis of sex can include discrimination based on sexual orientation and gender identity, the Trump-Pence Administration has sought to turn the clock back to the 1950s, when sex meant nothing but your naughty bits, not what you think of them or whom you do things with with them.

The Trump-Pence war on gay/trans America rests on reading words as they were when the law was written, not as those words may have evolved. Then-Attorney General Marty Jackley threw South Dakota’s good name behind this narrow definition of sex discrimination back in 2018 in a friend of the court brief filed with the United States Supreme Court:

The Sixth Circuit erred by categorically declaring “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.” EEOC v. Harris Funeral Homes, Inc., 884 F.3d 560, 571 (6th Cir. 2018). The text, structure, and history of Title VII, however, demonstrate Congress’s unambiguous intent to prohibit invidious discrimination on the basis of “sex,” not “gender identity.” The term “gender identity” does not appear in the text of Title VII or in the regulations accompanying Title VII. In fact, “gender identity” is a wholly different concept from “sex,” and not a subset or reasonable interpretation of the term “sex” in Title VII. The meaning of the terms “sex,” on the one hand, and “gender identity,” on the other, both now and at the time Congress enacted Title VII, forecloses alternate constructions.

…The text of Title VII prohibits invidious discrimination “on the basis of sex.” 42 U.S.C. § 2000e-2(a). The statute does not define “sex”; thus, the ordinary mean-ing of the word “sex” prevails. Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a statute are undefined, we give them their ordinary meaning.”). When Congress enacted Title VII, virtually every dictionary definition of “sex” referred to physiological distinctions between females and males, particularly with respect to their reproductive functions [Douglas Peterson, Nebraska Attorney General, amici curiae brief, Harris Funeral Homes v. Equal Employment Opportunity Commission, submitted to U.S. Supreme Court 2018.08.24].

Today the United States Supreme Court ruled on that case and two other consolidated cases. The United States Supreme Court told Jackley, Pence, and Trump that they are wrong. The Justice who delivered the opinion of the 6–3 majority was the man Trump appointed on the promise of strict conservative textualism, Neil Gorsuch, who said the text of the 1964 Civil Rights Act really does protect homosexual and transgender workers from discrimination:

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today,we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. 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 [Justice Neil Gorsuch, majority opinion, Bostock v. Clayton County, Georgia, 2020.06.15].

As usual, Jackley and his fellow Puritan discriminators fixated on sex and paid insufficient attention to the words around it—in this case, to the words because of and discriminate:

The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of’ or ‘on account of.’”… In the language of law, this means that Title VII’s “because of ” test incorporates the “ ‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause…. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.

…What did “discriminate” mean in 1964? As it turns out, it meant then roughly what it means today: “To make a difference in treatment or favor (of one as com-pared with others).”… To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated…. So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.

…Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.”…

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex [Gorsuch, 2020.06.15].

Justice Gorsuch says it’s the discriminating employers and the arch-conservative minority of Thomas, Alito, and Kavanaugh who are trying to ignore the law and legislate from a politically tilted bench:

…the employers are left to abandon their concern for expected applications and fall back to the last line of defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow…. Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up. The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding statutes requires us to refrain from diminishing them [Gorsuch, 2020.06.15].

Justice Gorsuch just shredded the single legal cloak behind which the Trump-Pence Administration and its Taliban enablers could hide their hatred of LGBT Americans. Trump’s repeal of healthcare protections for LGBT patients cannot withstand a challenge citing Gorsuch’s definition of discrimination because of sex. South Dakota’s Christofascists can no longer appeal to a narrow definition of sex discrimination to fight anti-bullying initiatives in schools that specifically protect homosexual and transgender students. South Dakota’s state-sanctioned discrimination against gay and transgender parents in adoption is likely toast.

Justice Gorsuch just hoisted Trump’s pandering to Pence’s conservatism with their own textualist petard. That twist on top of a historic ruling for equality makes for a good day in the waning months of Trumpistan.

Related Reading: John Thune is one of the Republican Senators defending Justice Gorsuch’s vote for LGBT equality:

“It demonstrated Gorsuch’s independence,” Senate Majority Whip John Thune said. “The country’s obviously changed a lot on that issue. And I assume that he looked at the facts and the law and that’s the conclusion he came to. And that’s what, when we nominated him and confirmed him, we wanted him to” [Burgess Everett and Marianne Levine, “GOP Backs Gorsuch’s LGBTQ Decision After Conservative Blowback,” Politico, 2020.06.15].

We wanted him to look at the facts and the law and rule that gays, lesbians, and transgender Americans deserve equal rights—I wish I didn’t have to be Gordon Howie to campaign against Thune with that line.