I find today’s ruling of the Supreme Court in Bostock v. Clayton County puzzling.
Gorsuch claims to be making a textualist argument. “The limits of the drafters’ imagination supply no reason to ignore the law’s demands,” he writes. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.“
This seems to contradict the argument he once made in “A Case for Textualism,” a chapter in his book A Republic, If You Can Keep It. There, Gorsuch seems not to find liberty to go beyond the “limits of the drafters’ imagination.” In it, he explained that textualism “tasks judges with discerning (only) what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.”
What bothers me about the ruling today is that Gorsuch seems to have fallen for a very simple-minded trick. The substance of the ruling is that the 1964 Civil Rights Act, which prohibits discrimination based on sex, also prohibits discrimination based sexual orientation (what Gorsuch calls “being homosexual”) and transgender identity (“being transgender”).
How did Gorsuch find these very 2020 concerns in a piece of legislation written in 1964? His textualist claim is that he’s following the text. But the substance of his argument is that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Gorsuch writes:
There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.
Gorsuch’s ruling is that you’re only firing the model employee because of their sex! This is fallacious, of course, and betrays how extravagant it is for Gorsuch is to say it is “impossible” to discriminate on homosexual or transgender issues without discriminating against the individual based on sex.
We only need two cases to show the fallacy. Model employee Amber arrives with Susan, and Model Employee Bob arrives with Sam. If the employer also intends to fire model Employee Bob, then it seems he’s applying the same rule to female and male employees, and he’s treating them equally. The employer is indeed considering the employee’s sex while making his decision, but he’s applying the same rule to both sexes.
Gorsuch’s ruling amounts to an assertion that a man who marries a woman and a woman who marries a woman are committing the same act. Or that a woman who was born with a female body is the same as a woman who was born with a male body. Whatever that is, it isn’t textualism or the Civil Rights Act.
I’m not just troubled by the ruling, I’m embarrassed on behalf of its author.