Monday, June 15, 2020

BREAKING: Supreme Court Holds Title VII Prohibits Discrimination Based Upon Sexual Orientation or Transgender Status

By Jonathan H. Adler - June 15, 2020 at 10:36AM

This morning the Supreme Court handed down one of the most long-awaited decisions of the term. In Bostock v. Clayton County, the Supreme Court held that discrimination on the basis of sexual orientation or transgender status constitutes discrimination "because of . . . sex" under Title VII of the Civil Rights Act. Justice Neil Gorsuch wrote the opinion for the Court, joined by the Chief Justice and Justices Ginsburg, Breyer, Kagan, and Sotomayor. Justice Alito dissented, joined by Justice Thomas, and Justice Kavanaugh dissented.

The respective opinions, including a lengthy appendix to Justice Alito's dissent, total 172 pages, and appear to have crashed the Supreme Court's servers. I've been able to download a copy and will update this post with excepts.

Justice Gorsuch's opinion for the Court begins:

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 basisof 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 Gorsuch's opinion emphasizes text over the intention of the authors of Title VII.

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we've seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a "canon of donut holes," in which Congress's failure to speak directly to a specificcase that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has alwaysapproached Title VII. "Sexual harassment" is conceptuallydistinct from sex discrimination, but it can fall within Title VII's sweep. Oncale, 523 U. S., at 79–80. Same with "motherhood discrimination." See Phillips, 400 U. S., at 544. Would the  employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.

From Justice Gorsuch's conclusion:

Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derailthe entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII's effects have unfolded with far reaching consequences, some likely beyond what many in Congress or elsewhere expected.

But none of this helps decide today's cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.



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