US Supreme Court outlaws discrimination on basis of sexual orientation or gender identity
2 July 2020
It is just over five years since the landmark United States Supreme Court decision in the case of Obergefell v Hodges (26 June 2015), and just over fifty-one years since the Stonewall riots (28 June 1969). To the many important dates in Pride Month must now be added 15 June 2020, the date of the Supreme Court’s decision in Bostock v Clayton County, which confirmed that is, in fact, illegal to fire an employee because they are homosexual or transgender.
It might seem surprising to many readers of this blog that there was a question about this. In the United States. In 2020. Yet even here in the UK it can hardly be said that employment protections for gay and transgender people have existed since time immemorial. It was only in December 2003, for example, that the UK Government enacted the Employment Equality (Sexual Orientation) Regulations 2003, which prohibited employers from committing direct and indirect discrimination, victimisation and harassment “on grounds of sexual orientation” (for which thanks is owed to the European Union, which mandated such legislation pursuant to the Equal Treatment Framework Directive of November 2000).
It can be said, however, that the legislation in the UK is sufficiently clear to put the question beyond doubt. Since 2010, sexual orientation and gender reassignment have been “protected characteristics” for the purposes of general discrimination law, pursuant to sections 4, 7 and 12 of the Equality Act 2010.
The law in the United States is not so explicit. Rather, Title VII of the Civil Rights Act 1964 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, colour, religion, sex, or national origin.” The question for the Supreme Court in Bostock was whether the prohibition of discrimination because of an individual’s sex also entailed a prohibition of discrimination on the basis that an employee was gay or transgender.
Three cases were being appealed together, and the facts in each of them were simple, and stark:
- Mr Gerald Bostock worked for his local authority (Clayton County) in Georgia as a child welfare advocate. After a decade of employment, during which time the County won national awards for its work, Mr Bostock made the fateful decision to start participation in a recreational gay softball league. He was promptly fired.
- Mr Donald Zarda was a sky-diving instructor in New York. He tried to reassure a female customer who had concerns about a tandem skydive with a male instructor by confirming that he was “100% gay”. She complained, and he was dismissed days later.
- Ms Aimee Stephens worked in a funeral home in Michigan. At the start of her employment she presented as male. Two years into her employment she underwent psychiatric treatment for “despair and loneliness” and was diagnosed with gender dysphoria. Her clinicians recommended that she start to live as a woman. Several years later, when she informed her employer that she would be returning to work as a woman after her vacation, she was fired because it was “not going to work out”.
In all three cases the employers openly acknowledged that their motive for dismissing their employees was that they were gay/transgender; but they said that was a wholly lawful thing to do. The plaintiffs argued that it was not, pursuant to a proper reading of Title VII of the Civil Rights Act 1964.
The decision was hotly anticipated. In the United States, the appointment of judges to the Supreme Court is lamentably politicised, and after President Obama’s nomination of Merrick Garland had been blocked by the Republican-controlled Senate in 2016, and the current occupant of the White House had apparently assured a 5-4 conservative majority by appointing two justices (most recently, following a harrowing confirmation process, Kavanaugh J), socially progressive groups could be forgiven for awaiting the judgment with some trepidation. These background issues are discussed further on the blog here.
On this occasion, they need not have worried. The split of votes was a refreshingly decisive and bipartisan 6-3, including Chief Justice Roberts. What’s more, the majority opinion was written by Gorsuch J, a “conservative justice” appointed in 2017.
The opinions make for a thoroughly enjoyable read (don’t be put off by the 172 pages — it is mostly appendices to Alito J’s dissenting opinion). As a student of English law, I am used to reading judgments which are characterised by temperate language, caveats, a degree of circumspection, or even consternation. In contrast, at least in this case, the opinions of the justices (particularly Gorsuch and Alito JJ) read like the most passionate of essays or written arguments — almost as if they were advocates rather than judges.
The Majority Opinion
But enough about politics and rhetorical style. How and why did the Court reach the conclusion that the prohibition on discriminating against an individual “because of … sex” in the Civil Rights Act 1964 includes a prohibition on discrimination based on sexual orientation and gender identity?
Reduced down to its bare essentials, the reasoning in Gorsuch J’s opinion can be summarised as follows:
- The jurisprudence of the Supreme Court confirmed that it would normally interpret a statute in accord with the ordinary public meaning of its terms at the time of its enactment (in this case, 1964).
- On that basis, the Court assumed (without confirming) the meaning of “sex” propounded by the employers i.e. it referred to biological distinctions, and did not in and of itself encompass sexuality or gender identity.
- Case law established that “because of” imposed a simple but-for test i.e. if someone’s sex was a but-for cause of their firing, it made no difference that the employer may have had other, potentially more dominant motivations for their actions.
- The fact that the statute prohibited discrimination against an individual also meant that it made no difference if men and woman as classes were treated equally (e.g. by firing both gay men and lesbians).
- An employer who fired someone because they were gay or transgender was necessarily firing that individual because of their sex.
- Accordingly, the words of the statute, given their ordinary meaning at the time they were enacted, mandated the conclusion that firing someone for being gay or transgender was illegal.
The fifth proposition above lies at the heart of the decision, and is best explained by citing the examples given in the opinion itself:
…it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
Gorsuch J acknowledged that this conclusion might have surprised the legislators of 1964, but the question for the Court was what the words of the statute meant, using the settled meaning of the words at the time. It was not a question of legislative intent:
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
Thus, it can be seen that a socially progressive result was reached not through purposive interpretation, implication or ‘woke’ judicial legislation, but through the application of a close and logical analysis of the statutory text. In other words, the court adopted a classically conservative legal approach.
Or did it? Not according to Alito J (with whom Thomas J agreed) or Kavanaugh J. The former in particular, with his Scalian language (“legislation…[a] more brazen abuse of our authority to interpret statutes is hard to recall…preposterous…”) and 52 pages of appendices, was particularly excoriating in his dissent.
He reasoned that even today — and certainly in 1964 — it is beyond argument that discrimination because of sex is linguistically and conceptually distinct from discrimination because of sexual orientation or gender identity. He pointed out that both men and women can be gay, and those who were identified as either male and female at birth can be transgender. Accordingly, someone who is discriminated against on either ground is not discriminated against because of their sex.
As for the examples given in the majority opinion to demonstrate the way that a decision to fire a gay or transgender person is inescapably based upon the (birth-)sex of that person, he said as follows:
… what we have in the Court’s hypothetical case are two employees who differ in two ways––sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the employer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex …
…The Court tries to avoid this inescapable conclusion by arguing that sex is really the only difference between the two employees. This is so, the Court maintains, because both employees “are attracted to men.” … Of course, the employer would couch its objection to the man differently. It would say that its objection was his sexual orientation. So this may appear to leave us with a battle of labels. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex …
… And a labeling standoff would not help the Court because that would mean that the bare text of Title VII does not unambiguously show that its interpretation is right.
He went on to insist that in such cases the employer’s real objection was not sex but homosexual orientation/gender identity:
In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out:
Man attracted to men
Woman attracted to men
Woman attracted to women
Man attracted to women
The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive.
For Alito J, interpreting a statute in accordance with its meaning at the time of its enactment inescapably led to the conclusion that the Civil Rights Act 1964 did not prohibit discrimination on grounds of sexual orientation or gender identity. He put great emphasis on the way the statute would have been understood to operate by ordinary people at the time, the way the statute had been interpreted by other courts subsequently, and the fact that congress had passed numerous laws in which (like the UK’s Equality Act 2010) sex, sexual orientation and gender identity were treated as distinct concepts. Indeed, there had been many (failed) attempts in Congress to amend the Civil Rights Act itself by adding these further prohibited grounds of discrimination, presumably on the basis that they had not been included in the first place.
He concluded his opinion by rejecting the idea that the majority decision was based upon a conservative texualist approach to the law:
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like 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.
Justice Kavanaugh also issued a shorter dissent, the core point of which was that, he argued, the majority’s opinon was not based the “textual” analysis that they professed it to be, but rather a “literalist” approach, which involved establishing the meaning of the individual words of a phrase, but losing sight of the meaning of the phrase a whole:
Consider a simple example of how ordinary meaning differs from literal meaning. A statutory ban on “vehicles in the park” would literally encompass a baby stroller. But no good judge would interpret the statute that way because the word “vehicle,” in its ordinary meaning, does not encompass baby strollers…
… The majority opinion repeatedly seizes on the meaning of the statute’s individual terms, mechanically puts them back together, and generates an interpretation of the phrase “discriminate because of sex” that is literal … But to reiterate, that approach to statutory interpretation is fundamentally flawed. Bedrock principles of statutory interpretation dictate that we look to ordinary meaning, not literal meaning, and that we likewise adhere to the ordinary meaning of phrases, not just the meaning of words in a phrase. And the ordinary meaning of the phrase “discriminate because of sex” does not encompass sexual orientation discrimination.
More broadly, the majority’s approach was objectionable to him because:
… A literalist approach to interpreting phrases disrespects ordinary meaning and deprives the citizenry of fair notice of what the law is. It destabilizes the rule of law and thwarts democratic accountability. For phrases as well as terms, the “linchpin of statutory interpretation is ordinary meaning, for that is going to be most accessible to the citizenry desirous of following the law and to the legislators and their staffs drafting the legal terms of the plans launched by statutes and to the administrators and judges implementing the statutory plan.” Eskridge, Interpreting Law, at 81; see Scalia, A Matter of Interpretation, at 17.
It is interesting to note that the conclusion of the dissenters reflects the decision reached by the European Court of Justice in Grant v South West Trains Ltd (C-249/96)  All ER (EC) 193. In that case a train worker brought proceedings when her employer refused to grant travel concessions for her female partner. The court decided that because concessions would also have been refused to the male partner of a male employee, there was no discrimination based on sex. It also said that the meaning of the underpinning legislative provision (Article 119 of the Treaty of Rome 1957) had to be interpreted by reference to its language, purpose and legal context, and that applying that approach, its prohibition of discrimination on grounds of sex could not be taken to cover discrimination on the basis of sexual orientation. It was this decision which, in part, led to the passage of the Equal Treatment Framework Directive (referred to above), which put the question beyond doubt in an employment context.
The same conclusion was reached by the UK Court of Appeal when interpreting the meaning of “sex” in section 6 of the Sex Discrimination Act 1975 in Pearce v Mayfield Secondary School Governing Body  EWCA Civ 1347. In that case, a lesbian teacher had been faced a torrent of homophobic abuse by students at the school. The court concluded that “sex” meant gender, and that homophobic abuse did not amount to sex discrimination because it could not be said that a male gay teacher would not have been treated the same way. Hence: inter alia, the Equality Act 2010.
But this case is about the interpretation of a US statute, based upon US jurisprudence, by the US Supreme Court.
In commenting on the case, I must be upfront that (a) although an occasionally interested observer, I have no particular expertise in US law, and (b) I have skin in this particular game. As a gay person, I very much want the majority opinion to be right. But even in trying to maintain objectivity, it does seem to me that the minority opinions are wrong, for two key reasons.
The first is that, in relation to Alito J’s argument, he seems to confuse motivation with causation. By focussing on the true nature of the employer’s “objection” and demonstrating that the employer was not objecting to the biological sex of the fired employees, he fails to address the fact that the Supreme Court’s own case law had determined that “because of” meant that, where it was shown that someone’s gender operated as a but-for cause of discrimination in any individual case, it fell within the conduct prohibited by the statute, whether or not it was the employer’s motivation.
That first error is bound up with a second, which undermines both dissents. At least in this case, both the majority and minority opinions agreed that the enquiry was to establish what the words of the statute meant as enacted at the time. But that textual enquiry does not take place in a legal vacuum. In the United States, as in the UK, the method to be employed is guided by precedent. And precedent had established that “because of” means objective but-for causation rather than subjective motivation. Precedent had also established that the reference to the individual in the statute meant that where sex was a but-for cause of a discriminatory decision against a particular person, it didn’t matter if the employer treated men and women equally as classes (e.g. by discriminating against both gay men and lesbians). In other words, precedent had already established a number of principles which determined the ordinary meaning of the words in the statute as enacted in 1964.
Alito J’s opinion makes far less reference to precedent as assisting the enquiry into original meaning. Rather, he resorts to “extratexual” considerations such as what the ordinary person on the Clapham (or Nashville, perhaps?) omnibus would have thought in 1964, and what the intent of Congress was at the time. As the majority opinion makes clear, however, the relevance of those considerations is in fact dismissed by precedent when the meaning and effect of the original words of the statute (again, determined with the assistance of case law) are clear.
Kavanaugh J does ground his approach in principles of interpretation articulated in the case law, but they are general principles, and do not address the principles and decisions established by the Supreme Court’s own authorities in relation to the meaning of the words in Title VII of the Civil Rights Act 1964.
Where to from here?
So it was that the Supreme Court finally clarified that that Title VII of the Civil Rights Act 1964 does in fact prohibit discrimination against gay and transgender people in the workplace. The majority opinion does not have the breadth or romance of Justice Kennedy’s leading opinion in Obergefell. It reads as a much more focussed and forensic exercise. Perhaps because of that approach, it is a welcome feature of the decision that it does not “feel” as though it is picking a side in the culture wars which continue to rage in the US (and indeed, globally). Having said that, those disputes are never far away. Indeed, Alito J dedicates some time in his judgment warning of the potential implications of the Court’s decision for a smorgasbord of hot-button socio-political issues, including women’s sports, religious organisations, healthcare, freedom of speech and access to bathrooms. However, as the majority opinion states, those questions will have to wait for future litigation.
For now, I conclude this post with the words of one of the dissenting judges, gracious in defeat:
… it is appropriate to acknowledge the important victory achieved today by gay and lesbian [and transgender] Americans … [millions of whom] have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.
Well said. And hurrah!
Matthew Flinn is a barrister at 1 Crown Office Row