Throughout his career on the bench, both on the Tenth Circuit and on the Supreme Court, Justice Neil Gorsuch has professed the importance of originalism and textualism and articulated what those concepts mean. In 2018, he wrote the following for the Court in a case called Wisconsin Central Ltd. v. United States:
Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. [citation omitted]
This sums up well what originalism and textualism mean in statutory construction cases. Yet in his 6–3 opinion for the Court yesterday in Bostock v. Clayton County, Gorsuch rewrote Title VII of the Civil Rights Act of 1964 to include sexual orientation and transgender status — and in the process defied every sentence of the above passage.
To read Gorsuch’s opinion as applying originalist or textualist principles is to swallow the untenable propositions that (1) equating sexual orientation and transgender discrimination with sex discrimination is simply the ordinary, contemporary meaning of the operative phrase; and (2) this understanding of sex discrimination is not only correct, but also unambiguous. Not surprisingly, all three of the justices who share his judicial philosophy dissented.
To be sure, Gorsuch pays lip service to the relevance of ordinary public meaning, but he does not build that concept into anything more than the following: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” By itself, that statement is uncontroverted. It simply begs the question of the case about the meaning of sex in the statute. The Court’s opinion has a lot to say about sex not needing to be the sole or primary cause of termination for a Title VII claim, but as Justice Samuel Alito wrote in a dissent joined by Justice Clarence Thomas, its “extensive discussion of causation standards is so much smoke.”
After that, Gorsuch addresses ordinary meaning only in the form of straw men, to show what it does not mean. For one thing, he writes, “ordinary conversation” does not give us the answer. That is how he gets around his own concession, “If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex.” Why is that irrelevant? Because that might give us “the primary or most direct cause rather than list literally every but-for cause.” In other words, more smoke on causation.
The second straw man is that sometimes a law’s drafters must be consulted to discern “shifts in linguistic usage or subtle distinctions between literal and ordinary meaning,” but this was not a case in which the sued employers “seek to use historical sources to illustrate” either point.
Neither argument gets the majority where Gorsuch wants to take it. Well beyond casual conversations in informal settings, the ordinary meaning of sex is different from sexual orientation and transgender status in every imaginable context, from cases involving specific parties to legislators and executive officials setting more abstract rules.
Until 2017, over half a century after the 1964 Act was passed, every single court of appeals decision facing the issue interpreted sex discrimination to mean discrimination because of biological sex. As Justice Brett Kavanaugh observes in a separate dissent, the first ten circuit decisions to consider the sexual orientation question unanimously said no; a total of 30 judges of varying judicial philosophies reached the same conclusion. Additionally, before yesterday, the Supreme Court has had numerous opportunities to decide sexual orientation cases, and none of the 19 justices who participated in those cases ever equated such discrimination with sex discrimination, subjecting it instead to a different standard of scrutiny.
The majority does not fare better when we look at other branches of government. As Kavanaugh points out, Congress has never equated sex discrimination with sexual orientation discrimination or classified one as a form of the other. It has passed numerous laws prohibiting sexual orientation discrimination in various contexts, and every single one of those expressly articulates that prohibition in addition to a prohibition of sex discrimination. The same is true of presidential executive orders and any number of federal agency regulations. It is also true of almost every state statute or executive order. For that matter, listen to any argument today regarding gender discrimination and LGBT issues, on either side, and you will notice the speaker never assumes one category includes the other.
The relevant meaning has been consistently against the majority’s view since 1964, but however much as it seems like piling on, it is still important to note that none of the historical evidence surrounding the statute’s passage remotely supports it. Alito’s dissent demonstrates that when the Civil Rights Act was being debated, the Court’s construction was beyond anyone’s imagination. If it were otherwise, opponents could have seized on that possible interpretation for a slam-dunk argument against passage. Gorsuch dismisses historical evidence on grounds that other future applications of Title VII were not contemplated in 1964, such as protecting men from discrimination and addressing sexual harassment, but of course those applications remained anchored to biological sex.
If any doubt remains that Gorsuch has abandoned any real ordinary meaning argument, read Kavanaugh’s discussion of why the “rule of law and democratic accountability” require ordinary meaning to trump literal meaning. Then read the litany of examples he gives to illustrate the point. For example, “A statutory ban on ‘vehicles in the park’ would literally encompass a baby stroller,” and a Supreme Court decision found that a statutory context would be upset if water were interpreted to be a mineral. Gorsuch cites fewer examples of this dichotomy, and he does so only to demonstrate the irrelevancy of the exercise. A little common sense can go a long way, but Gorsuch opts instead for his uncommon ability to discern meanings that waited over half a century for him to discover.
As Kavanaugh quotes Justice Antonin Scalia, “the good textualist is not a literalist.” But read Gorsuch’s opinion closely, and the only substance it contains is a literalist argument it strains to make. He poses the hypothetical of an applicant filling out a job application that was designed to ask about gay or transgender status without the employer knowing the applicant’s biological sex. That applicant could sue, he said, because deciding whether to check a box required knowledge about sex, and “sex still weighs as a factor in the employer’s decision,” even when it did not know the sex.
That does not make sense, but Gorsuch later states the closest thing to a premise for his conclusion: “[H]omosexuality and transgender status are inextricably bound up with sex.” That is cogent only in a sense that shuns ordinary meaning and invites the most open-ended literalism. “Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, ‘sex,’” Alito points out. “Many things are related to sex.”
The distinction between ordinary and literal meaning here is gaping. And at the end of the day, this obliterates the notion that there is a lack of ambiguity in Title VII, at least one that helps Gorsuch. The only thing that is clear is that the statute means the opposite of the Court’s holding. And as Alito points out, that holding is sweeping enough to threaten destructive consequences to employer obligations (the “bathroom” question), the fate of Title IX and other laws that address sex discrimination, the future of women’s sports, religious organizations’ freedom with respect to their employees, health-care benefits, and free speech.
Justice Scalia would be disappointed that his successor bungled textualism so badly yesterday. This was not judging, this was legislating — a brute force attack on our constitutional system. While the question of whether to amend Title VII to add more categories may be a difficult one as a matter of policy, the question of the Court’s role on this issue was an easy one: Allow the people to decide the issue through their elected representatives, as a majority of states already have done with respect to sexual orientation.
In Bostock, six judges acting as advocates opted to rewrite the statute themselves, short-circuiting the legislative process and in the process denying the people a decision that should be theirs to make on a major issue. This is an ominous sign for anyone concerned about the future of representative democracy.