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A closer look at the Supreme Court’s LGBTQIA+ ruling

What the Supreme Court’s recent LGBTQIA+ worker decision means and what it tells us about the future.

By Rachel Knight

On June 15, 2020, the Supreme Court ruled that the language of the Civil Rights Act of 1964 protects gay and transgender workers from workplace discrimination. This long-sought and unexpected victory was celebrated in tandem with Pride Month throughout June. 

We talked to James Rogers, associate professor of political science and former editor of the Journal of Theoretical Politics, to learn more about the decision and what it tells us about the Supreme Court.

Explain the importance of the Civil Rights Act of 1964 in this ruling. 
The Civil Rights Act of 1964 was a landmark civil rights law adopted by Congress. What made it so significant is that it asserted wide authority prohibiting discrimination against several categories of people by private business in employment and in public facilities like restaurants. Title VII of the Act, which was the Title at issue in Bostock, makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.”

In Bostock, a six-justice majority on the Supreme Court held that the Civil Rights Act of 1964 prohibited employers from firing gays or transsexuals as unlawful discrimination on the basis of sex. Unlike many governments in the U.S. which already prohibited discrimination of this sort, Bostock applies to employees in the massive private sector of the U.S. economy. 

Prior to Bostock slightly fewer than half of the U.S. states had their own laws prohibiting private sector employment discrimination against homosexuals and transsexuals. (Several other states protected one or the other, and some states had executive orders doing the same.) Because the Civil Rights Act of 1964 is a Federal law, it extends the protection to all parts of the United States, whether it has state level laws or not.

Tell me about the interpretive approach taken in the majority opinion and in the dissenting opinion.
The second remarkable aspect of Bostock is that the Court – the entire Court, whether voting in the majority or in dissent – applied an approach to statutory interpretation called “originalism” or “textualism.” This was a pet project of the late Associate Justice Scalia, one of the more conservative members of the Court up to his death. What is remarkable about Bostock is not that the five conservative members of the Court applied textualism in interpreting the statute – even though they ultimately disagreed on what the text meant – but that the four liberal members of the Court, all in the majority, signed off on an expressly originalist/textualism majority opinion without expressing any reservations in a separate concurring opinion.

The four liberal members of the Supreme Court did not align themselves with that view, and Justice Breyer even disagreed with it expressly in his own book on statutory interpretation. That the entire Court, without writing separately, signed off on opinions that endorse textualism ratifies a truly remarkable sea change in the way the Court interprets legal texts.

So while liberals won on the substance of the decision in Bostock, the conservatives on the Court in fact won on the methodology of the decision.

This decision does not involve constitutional rights. Instead it is based on the meaning of a statute. Is this important? Why or why not?
Bostock is not a decision articulating constitutional rights, it is a decision interpreting a statute, the Civil Rights Act of 1964. This is possibly an important difference, because statutes can be amended or repealed much easier than the Constitution can be changed. Congress has often modified a statute in response to a Court decision interpreting it in a way Congress did not want the statute to be interpreted.

That said, the likelihood that Congress will amend the statute to rule out the interpretation the Court provided in Bostock to the Civil Rights Act of 1964 is remote. First, because the House is in Democratic hands. Secondly, because the Republicans hold only 53 seats in the U.S. Senate, and I doubt they are solidly unified in opposition to a decision that results in outlawing

 employment discrimination against gays and transsexuals. So while it is possible to amend the Civil Rights Act of 1964 effectively to “overturn” Bostock, the probability of Congress taking that action is close to zero.

What is the significance of this being a 6-to-3 ruling?
The surprise of Bostock being a 6-to-3 ruling is that there are only four “liberal” justices currently on the Supreme Court. The size of the majority means that two justices typically identified with the Court’s conservative majority sided with the liberal justices to create the decision in this case. The two justices were Chief Justice John Roberts and the author of the majority opinion, Neil Gorsuch.

It is possible that Roberts and Gorsuch have somewhat more of a libertarian leaning than the other conservatives on the Court. It is also possible that methodology trumped substance in this case. That Roberts and Gorsuch were so committed to originalism/textualism that they followed it even though it resulted in a substantively “liberal” outcome. Irrespective, the irony cannot be lost: A decidedly liberal outcome resulted in the case through a decidedly conservative reading of the statute.

What does the Supreme Court’s decision tell us about the Supreme Court and the justices on it?
There are many possible answers to this question. I think we need additional time to see whether this provides evidence of a moderate-conservative swing coalition. To be sure, Chief Justice Roberts has on occasion voted with the liberal coalition, and so formed a majority of five. Justice Gorsuch is still new enough on the Court that we will need additional time to see whether this vote is an outlier, or reflects a libertarian streak that could affect votes in other areas of civil liberties and civil rights.

At the same time, it is possible that Justice Gorsuch is so committed to legal originalism/textualism, that he followed it to the result in this case, providing the opportunity to write a decision based on textualism with which the four liberal justices would agree.

It is worth noting, also, that when the Chief Justice votes in the majority, the Chief Justice selects who will write the majority opinion. If Chief Justice Roberts voted with the other dissenters, then the most senior member of the majority – Ruth Bader Gingsberg – would have assigned who wrote the majority opinion.

Many people view this decision as the beginning of a new era in transgender rights. What does this decision say about the new era we’ve now entered in transgender rights?
While the decision itself — outlawing employment discrimination against transsexuals — certainly provides added and important protections to transsexuals, I see this decision more as one in continuum with existing cultural currents and would hesitate to suggest the decision heralds “the beginning of a new era in transgender rights.” 

The majority opinion — as are most originalist/textualists opinions — is based not on policy grounds in favor of new rights for transsexuals, but rather on linguistic grounds in a statute written over 50 years ago. The majority opinion states not that the Civil Rights Act of 1964 should as a matter of policy protect transsexuals against employment discrimination, it states that as a matter of linguistic fact the statute does include transsexuals within its prohibition of discrimination based on sex.

Congress could change the statute so that it would not cover employment discrimination against transsexuals. If it did, I would anticipate the Supreme Court would also uphold the new Congressional statute excluding protection for transsexuals.

That there is not the political will to amend the statute to exclude discrimination against transsexuals, however, suggests to me a continuation of current trends in the evolution of beliefs and attitudes regarding transsexualism, rather than marking the advent of “a new era in transgender rights.”