In the Civil Rights Act of 1964, Congress took the unprecedented step of inserting federal anti-discrimination law into purely private employment decisions. It did so to address an urgent national crisis: the long shadow of state-backed racial discrimination. A mischievous opponent of the bill added “sex” to the list of forbidden bases for discrimination. Nobody at the time would have thought that the term “sex” meant “sexual orientation” or “gender identity at odds with biological sex,” yet the Supreme Court, in Bostock v. Clayton County, said that it now does.
To begin with, this is an unhealthy way to make law in a democracy. The law is now read to mean something different in 2020 from what even the most liberal Justices would have said in 1964. Congress for years has been debating bills to amend the statute to cover these topics; the Court just did its work for it, and without any of the compromises or conscience protections that legislators typically debate. We understand what the Court’s liberal justices were up to, but a decent respect for democratic lawmaking should have cautioned Justice Gorsuch and Chief Justice Roberts against going down this path.
The decision steals a number of bases without admitting what it is doing. Men must get the same treatment as women, says the Court, but who is a man and who is a woman? In the transgender case, that is itself effectively the question, one better resolved by the people’s representatives if the law must decide it. The Court says that a man cannot be fired for marrying a man if a woman would not be fired for marrying a man — but this is not discrimination on the basis of sex at all, it is discrimination on the basis of behavior. The Court says that it is not (yet) abolishing bathrooms and dress codes that distinguish by sex, but it is difficult to see how its rigid, ahistorical logic of “all must be the same” does not lead that way.
We think Justice Alito had the better of the argument: The law has long understood that sexual orientation and identity are distinct concepts from sex. When the military banned gays and lesbians alike from serving, or the immigration laws banned homosexuals from entering the country, the response was to change the law, not to pretend that the question was one of gender discrimination.
Imposing the framework of race discrimination blindly onto sexual matters has always involved additional complications better handled by legislative compromise. Will traditionally minded people now be brought up for workplace harassment for holding conventional opinions about marriage and human biology? The Court admits that its decision will drive it deeper into the thicket of conflict between anti-discrimination law and religious liberty, placing religiously orthodox Americans further on the defensive. It is precisely because of the interests to be balanced that it would have been better to leave the meaning of the law as it was when written and leave to Congress the decision of when and how to change it.