A historic step towards LGBTQ equality, the Supreme Court decided Monday (6-3) in Bostock v. Clayton County, Georgia that the 1964 federal Civil Rights Act, which outlaws workplace and public discrimination based on race, color, religion, national origin, or sex, includes the protection of gay and transgender individuals. The key argument in the Court’s opinion, written by Justice Neil Gorsuch, President Trump’s first SCOTUS pick, is that the law’s reference to ‘sex’ requires protections for people treated differently because of their sexual orientation and/or gender identity. The argument is weak and contrary to legislative intent—nevertheless, the impact it will bring is important and supported by the Equal Protection clause of the 14th Amendment to the United States Constitution. Section 1 requires that no state “deny to any person within its jurisdiction the equal protection of the laws.”
Justice Gorsuch states that “an employer violates [the Civil Rights Act of 1964] when it intentionally fires an individual employee based in part on [biological] sex.” Following that premise, he is accurate in his conclusion that firing gay or transgender people (which requires consideration of their sex) is illegal. Yet, hinging on the “in part” qualification he makes, his premise seems misguided.
When the Civil Rights Act of 1964 was passed, America was just coming around to legal rights for women and people of color. Even now-liberal states, such as New York and California, did not support basic gay rights until decades after the ‘60s. Only in 1992 did California Governor Pete Wilson change his position to restricting discrimination against gay and bisexual employees. Four years later, President Clinton signed the highly-popular Defense of Marriage Act into law, which federally defined marriage as a union between a man and a woman.
We are not led to believe, seeing the consensus of the U.S. government in 1996, that 56 years ago, Congress meant “sex” to cover gay and transgender people, whose right to marriage was only recently established in Obergefell v. Hodges (2015). The intent of the law, a critical factor in judicial interpretation, does not support the Court’s conclusion.
Why care about the intent of the law? Our Constitutional system of separation of powers asks courts to interpret laws, not compose them. It’s clear that the law should protect LGBTQ people from being fired arbitrarily; however, it is Congress’s duty to fix the law, not the job of nine unelected judges to apply “sex” beyond legislative intent. Especially considering strong popular support for anti-discrimination policies, amending the law should have happened on the congressional floor, not a courtroom.
Take it from Justice Gorsuch himself who, as the Wall Street Journal’s Editorial Board notes, supports interpreting statutes according to the meaning of the language at the time it was written. “After all, if judges could freely invest old statutory terms with new meanings,” the Constitution’s lengthy process for amending democratically-supported legislation would be disregarded (New Prime, Inc. v. Oliveira).
And second, I remain convinced that the Court’s interpretation—that discriminating “in part” for one’s sex violates the Civil Rights Law—is not correct. It may seem like a minute distinction, but adding “in part” will bring negative consequences to legal precedent.
Let’s say a company operates in one of the states that do not offer paid family leave, which is most of them. The company has limited financial resources. It decides to provide eight weeks of paid leave to new mothers and only four weeks of leave to male employees (the exception being if an employee is a single father).
This policy doesn’t strike me as particularly unfair, but more importantly it’s presumed to be legal in states without conflicting laws on paid family leave. But under the Court’s phrasing of “in part,” this policy violates the Civil Rights Act of 1964. Even though the policy is informed by a meaningful biological distinction, the policy wrongly discriminates against men: they are entitled to eight weeks of paid leave if mothers are.
Is this what the sponsors of the Civil Rights Act intended when they pushed for its enactment? It seems to be a wrong conclusion despite following Gorsuch’s reasoning to a tee. Through modus tollens we can imply that the argument’s premise, that it’s illegal to differentiate “in part,” is wrong. It is wrong because the policy is not malicious, nor is it the sort of unequal treatment Congress meant to prevent. Malicious discrimination, such as firing a person for being a woman, would still be illegal under my reading of the Civil Rights Act.
Gerald Bostock, above, was the remaining living plaintiff in the case. Bostock was fired from his position in Clayton County, GA’s Child Welfare Department after joining a gay softball league. He can be seen speaking on the steps of the Supreme Court following the favorable ruling.
If the Court’s interpretation is not justified, are we to abandon hope of protecting gay and transgender people from being fired out of intolerance? Fortunately, the 14th Amendment’s Equal Protection clause grants a path to effect stronger protections than the Supreme Court’s actual decision. While the language of the 14th Amendment was primarily intended to protect recently-freed African Americans, the Court’s system of analysis for Equal Protection (which it has applied in countless cases for decades) is friendly to LGBTQ rights.
Key to understanding my subsequent argument is an appreciation of how Equal Protection claims are considered. Courts apply one of three standards to claims that the government has denied “equal protection of the laws.” The standards are a rational-basis test, where unequal laws only need a conceivable reason to be constitutional, heightened scrutiny, where a law must have “substantial reasons” for its passage, and strict scrutiny, where the law must be “narrowly tailored” around a legitimate government interest to be constitutional (United States v. Carolene Products Co).
Since it is not difficult to provide a conceivable reason for most laws, the current test used for legislation that distinguishes based on sexual orientation, rational basis, has not been adequate in granting equal rights. This is why homophobic laws were upheld decades after the 14th Amendment’s ratification. But if the Court were to apply intermediate or strict scrutiny, as it has to the classes of sex and race respectively, the government would need significant reasons for any distinction; without such justification in court, the law would be found to violate the Equal Protection clause (Plyler v. Doe).
Adopting this argument, as the 2nd Circuit did in Windsor v. U.S. (2013), would mean that virtually any future law would have to apply equally for gay and straight people. Further, the states which do not protect LGBTQ people from workplace discrimination would be denying them Equal Protection.
How do we know that laws affecting gay and transgender people should be examined with higher scrutiny?
According to current precedent, courts should apply heightened scrutiny when at least three conditions are met. Bowen v. Gilliard (1987) established that a certain class of people must have been subjected to historical discrimination and that the characteristics that differentiate such a class be “immutable,” or unchanging (this calls into question protections for transgender individuals. If gender identity is chosen, it may not be an immutable characteristic).
Thirdly, the relevant characteristic (sexual orientation or gender identification) must not impair one’s ability to contribute to society (City of Cleburne v. Cleburne Living Center). This qualification allows laws that distinguish people with mental disabilities, since their contributions are impacted.
LGBTQ people have historically been (and are) discriminated against, recognizing the illegality of their behavior in many states until Lawrence v. Texas (2003). Adding that they are equally productive members of society, and could not choose to have different sexual preferences, legislation that fails to regard gay and straight people as equals is unconstitutional under precedent set by the Supreme Court.
We are led to the conclusion that allowing a person’s firing based on her sexual preferences or gender identity is unconstitutional because it violates Equal Protection under the 14th Amendment. The Supreme Court’s arguments, not just the results they bring, are important because they influence every federal and state court in America. The Court’s interpretation that the law prohibits any discrimination based “in part” on sex does not have to be correct to reach the desirable conclusion that gay, bisexual, and transgender people cannot be fired for prejudice of an employer. Relying on the 14th Amendment instead, the protections would be stronger for affecting all future laws that distinguish on the basis of being LGBTQ.
The image of Bostock is credited to Michael Key at the Washington Blade.