Textualism Unites Conservative and Liberal Justices to Vindicate LGBTQ Workplace Rights

Yesterday, the Supreme Court held in Bostock v. Clayton County that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964, the federal law regulating discrimination in employment. Accompanying the relief and celebration of LGBTQ advocates and allies was genuine surprise that the opinion, which was expected to be a 5-4 decision, in fact secured six votes for the majority and only three dissents. Additionally, there was surprise that the pro-LGBTQ majority opinion was written by Justice Gorsuch, President Trump’s appointee, who is generally considered to lean towards the conservative wing of the Court. The Supreme Court’s prior case majority opinions addressing LGBTQ rights were all written by Justice Anthony M. Kennedy, who retired in 2018, leaving more mystery as to how the case would be decided by the current justices.

The basis for the decision, which relied on the plain textual meaning of the statute, helps explain why the more “conservative” Justices Gorsuch and Roberts saw fit to join the “liberal” wing of the Court on this issue. As their opinion explains, the majority of the Court felt that the plain text of Title VII, along with Supreme Court precedent, commanded the result.

Title VII prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. Many state and local laws also explicitly include sexual orientation and gender identity among protected classes. But plaintiffs in the three cases before the Supreme Court argued that Title VII’s ban on discrimination on the basis of “sex” also necessitated protections for gay and transgender individuals at the national level.

Gerald Bostock worked for a decade as a child welfare advocate for Clayton County, Georgia, which won national awards for its work under his leadership; nonetheless, the county terminated him after he began participating in a gay recreational softball league. Donald Zarda was fired from a skydiving company in New York after disclosing that he was gay. Aimee Stephens worked at a funeral home in Michigan and presented as male when she got the job, but was fired after explaining to her employer that she intended to “live and work full-time as a woman.” All three were plaintiffs who obtained vindication by the Supreme Court yesterday; however, Zarda and Stephens’s cases are being pursued by their estates as they passed away prior to the ruling. Stephens passed away roughly one month prior to the decision.

All three employers argued that firing these employees for being gay or transgender was not firing them based on their “sex,” understood as “status as either male or female [as] determined by reproductive biology.” The employers maintained that Title VII did not explicitly include sexual orientation or gender identity, and lawmakers at the time it was passed in 1964 did not likely intend “sex” to include sexual orientation or gender identity.

But for Justice Gorsuch and the majority, it was impossible to escape the fact that discrimination based on gender identity or sexual orientation are inherently based on sex, even adopting the employers’ restrictive definition of the word sex. “[A]n employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules,” Gorsuch wrote. “An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.”

As for the employers’ invitation for the Court to consider legislators’ intent in 1964, Justice Gorsuch’s opinion emphasized what many conservative jurists believe: that legislative intent should not displace the plain meaning of the law. One of the reasons jurists eschew reliance on legislative intent is the inherent difficulty in divining a single intention from a past Congress made up of many different lawmakers. Indeed, as Justice Gorsuch noted, some lawmakers did deliberately intend for the scope of “sex” to be interpreted broadly in Title VII, but because they wanted to sabotage the bill. Quoting Justice Scalia, Justice Gorsuch wrote: “[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

That Scalia quote was from Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), a case in which the Supreme Court ruled that Title VII prohibited sexual harassment of male employees by other male employees. The Oncale decision, along with two other Supreme Court decisions, also guided the majority’s analysis by providing clear examples where Title VII’s prohibition on sex discrimination was interpreted in a way that may not have been contemplated by lawmakers in 1964.  In Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the Supreme Court held that a company violated Title VII by refusing to hire women with young children, even though the company generally favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), an employer was found to have violated Title VII by requiring women to make larger pension fund contributions than men because women tended to live longer. In each of these cases, the employer did not perceive themselves to be discriminating based on sex, per se, or solely based on sex, and yet the employment decision turned on the employee’s sex. Though the lawmakers who passed Title VII may not have contemplated that the law would prohibit male-on-male sexual harassment, discrimination based on “motherhood,” or discrimination motivated by the benevolent and “prosaic” intention of accounting for actuarial tables when collecting pension contributions—the plain meaning of the statute controlled—the employment actions were based on sex.   

People often associate conservative jurists’ rigid textualism with being frozen in time, but Justice Gorsuch’s majority opinion proves there is more nuance to the issue. Sometimes, a statute’s plain meaning can yield a more expansive protection that evolves with time and with trials in the courts, especially when its interpretation is not confined narrowly to the intent of the legislators who wrote it. As yesterday’s opinion states in its opening paragraphs: “[T]he 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 extra-textual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”


This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. RPJ Counsel Ethan Krasnoo and Associate Elizabeth Stork counsel both companies and individuals on employment matters and are available to consult on specific matters. They are admitted to practice in New York. Attorney Advertising.