Bench Memos

Law & the Courts

A ‘Pirate Ship’ Sailing under a ‘Textualist Flag’

In today’s much-awaited ruling in the Title VII cases (decided together under the caption of Bostock v. Clayton County), the Supreme Court ruled by a vote of 6 to 3 that discrimination on the basis of sexual orientation or transgender status constitutes discrimination “because of … sex” in violation of Title VII. Justice Gorsuch wrote the majority opinion, which was joined by the Chief Justice and the four liberal justices. Justice Alito and Justice Kavanaugh each wrote dissents, with Justice Thomas joining Alito’s dissent.

In his dissent, Alito memorably likens Gorsuch’s majority opinion to a “pirate ship”:

It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

As someone who had much higher expectations for Gorsuch (and for the Chief Justice), I’m sorry to say that I completely agree with Alito. In this post, I will highlight some of the reasons why. Let me first acknowledge, though, that I do not view the path to the correct statutory answer as a simple one. It requires care to avoid some pitfalls.

1. Gorsuch’s majority opinion “proceed[s] on the assumption that ‘sex’ … refer[s] only to biological distinctions between male and female” (Majority at 5), but contends that “homosexuality and transgender status are inextricably bound up with sex”: “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” By his account, if an employer is okay that a female employee is attracted to men, that employer is discriminating on the basis of sex if he penalizes a male employee for being attracted to men. Ditto if the employer retains a self-identifying female “who was identified as female at birth” but fires a person who now identifies as female “who was identified as a male at birth.” (Majority at 10-11.)

As a technical matter, Alito points out that it is indeed “quite possible for an employer to discriminate on those grounds [i.e., sexual orientation or gender identity] without taking the sex of an individual applicant or employee into account”—e.g., through a blanket policy against hiring gays, lesbian, or transgender individuals. Indeed, he observes, employees’ counsel conceded the point at oral argument. (Dissent at 8-9.)

More importantly, Alito explains that the proper textualist inquiry concerns what the words of a law “conveyed to reasonable people at the time” it was enacted. (Dissent at 23 (quoting Scalia’s Reading Law).) “Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and unknown civilization.” (Dissent at 24-25.) “In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity.” (Dissent at 25.) That is so for several reasons, Alito explains:

First, in 1964 the concept of prohibiting discrimination “because of sex” was “a familiar and well-understood concept, and what it meant was equal treatment for men and women.” (Dissent at 25; see pp. 25-28.)

Second, while “it is painful to be reminded of the way our society once treated gays and lesbians …., the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment”:

We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented the official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment.

The questions answer themselves.

Third, “Americans in 1964 … would have been bewildered to hear that this law also forbids discrimination on the basis of ‘transgender status’ or ‘gender identity,’ terms that would have left people at the time scratching their heads.” (Dissent at 34; see 34-35.)

2. Rather than attempt to harmonize his radical new interpretation of Title VII with settled practices under that statute and other laws prohibiting sex discrimination, Gorsuch dismisses invocation of these settled practices as “naked policy appeals” and as complaints about “undesirable policy consequences.” (Majority at 30-32.) But the longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes—all of which require taking account of an employee’s sex—severely complicates Gorsuch’s claim that any employer policy that requires taking account of an employee’s sex clearly discriminates on the basis of sex under Title VII.

3. Gorsuch’s ruling will almost surely have extreme consequences. Those consequences wouldn’t provide a reason to misread the text of the law. But they ought to have induced more humility about whether Gorsuch’s reading is in fact right.

As Alito spells out, those consequences extend to whether bathrooms and locker rooms may be sex-specific (pp. 45-47), whether women’s sports and girls’ sports may be reserved for females (pp. 47-48), and whether colleges may assign dormitory rooms by sex (p. 48).

Gorsuch doesn’t dispute that such consequences will ensue; he says only that these “are questions for future cases.” (Majority at 31-32.)

4. In a telling but otherwise trivial passage, Gorsuch states that the Court granted certiorari in these cases “to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons.” (Majority at 4 (emphasis added).) What his “at last” obscures is that until 2017 there had long been a “unanimous consensus” (Dissent at 43) among the courts of appeals that Title VII’s prohibition on discrimination because of sex did not cover discrimination on the basis of sexual orientation or transgender status. As Alito notes, even the EEOC—well known for its adventuresome interpretations (that’s my observation, not Alito’s)—somehow “failed to see [what Gorsuch contends is] obvious for the first 48 years after Title VII became law.”


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