The U.S. Supreme Court today in a 6-3 decision in
Bostock v. Clayton County, Georgia, (Sup. Ct., June 15, 2020), held that the provisions of Title VII of the 1964 Civil Rights Act which prohibit discrimination in employment "because of sex" protect gay, lesbian and transgender individuals. In an opinion written by Justice Gorsuch, and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, the court said in part:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
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.
Justice Alito filed a dissent, joined by Justice Thomas, saying in part:
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added)….
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 filed a dissent, saying in part:
Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.
The Court's opinion covered three cases,
Bostock, Altitude Express, and
R.G. & G.R. Harris Funeral Homes. Religion News Service reports on the decision.
