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Gorsuch’s Textual Revolution

Justice Neil Gorsuch’s opinion in Bostock v. Clayton County redefines the word “sex” in Title VII of the Civil Rights Act of 1964 to include “sexual orientation” and “gender identity.” Relying on few precedents and needlessly long at 33 pages, it has only one point to make. It is what he portrays as a simple syllogism, joyously and triumphantly quoted by every media source: “[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” And the media is not wrong to quote only that one sentence. It is an accurate statement, summary, and full portrayal of the decision. Along with its other unique qualities, this is a Supreme Court opinion of one thought—or just one word, according to Justice Alito in dissent: “There is only one word for what the Court has done today: legislation.”

Words Mean What I Say They Mean

Gorsuch displayed considerable rhetorical finesse in avoiding the real legal issue in the case: what did the word “sex” mean at the time of enactment of the federal employment-discrimination statute, Title VII, in 1964? At the beginning of his opinion, he concedes that in 1964, the word “sex” referred “only to biological distinctions between male and female.” He then never emphasizes the clear meaning of the word “sex” again, but instead, abruptly changes the subject and holds forth at length on the meaning of the phrase “discriminate . . . because of sex.” He concludes that “discriminate” means today what it meant in 1964; therefore, his opinion is in keeping with the legislative intent of 1964. As if there was any disagreement about the word “discriminate.”

Among his meager citations of precedent, Gorsuch does offer three as his proofs that Title VII can and has taken on new meanings over the years. Yet all three were based on the simple and natural distinction between male and female. In Philips v. Martin Marietta (1971), the Court ruled that an employer’s refusal to hire women with young children violated Title VII. In another, Los Angeles v. Manhart (1978), the Court ruled that Title VII was violated by a business requiring greater pension contributions from women because they lived longer than men. Likewise, Oncale v. Sundowner (1998) stands merely for the reality that men, as well as women, can be victims of sexual harassment at work.

In citing, without apparent irony, the late Justice Scalia on textualism, Gorsuch holds that “[o]nly the written word is the law.” The “legal terms” here, Gorsuch says, have “plain and settled meanings.” What we have here is an “unambiguous statutory text.” Thus, the necessary result is so obvious and inevitable that he expressly disdains the two other normal methods of textual analysis: legislative history and the meaning of words at the times they are enacted into law. But, of course, he has cited three cases that he portrays as having changed and expanded the meaning of “sex” in the statute. And continuing, he says that the Court must be “sensitive” to the “possibility a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context.” So, overall, the text is both immutable and mutable. Before the Second and Seventh Courts of Appeals reversed themselves and thereby created this case, 11 of the 12 regular Courts of Appeals had ruled over a period of many years that “sex” meant male and female.

Sharply criticizing Gorsuch’s semi-mystical conclusion that any word or concept having to do with “sex” may constitute “sex discrimination,” Justice Alito points out that “Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, ‘sex.’ Many things are related to sex. . . [for instance,] ‘sexual harassment,’ ‘sexual assault,’ ‘sexual violence,’  ‘sexual intercourse,’ and ‘sexual content.’” Title VII certainly doesn’t apply to these categories, does it?

The complexities of the new vocabulary are not just problems for employers and their HR departments, but also for conversation in the lunch room.

With a certain vehemence, Gorsuch answers another argument, that is, that employers can get off the hook if they treat men and women equally. “Our focus” must be “on individuals, not groups,” he asserts. The meaning of “individual” “was as uncontroversial in 1964 as it is today.” It is “a particular being as distinguished from a class, species, or collection.” However, in our present age of identity politics, entitlement, group rights and privileges, diversity, disparate treatment, and reparations, it almost goes without saying that individual grievances like the three in the present Supreme Court decision are valued primarily as precedents for new group policies and practices. That is the grand purpose of legal and judicial activism. Gorsuch’s logic may have undermined that, but who can doubt that the normal contemporary group-rights practices will prevail? HR departments will undoubtedly look to “increase the representation” of this or that sexual minority as evidence of nondiscrimination.

Society-Changing Legislation

The Court has now incorporated the entire vocabulary of the comprehensive LGBTQ (“plus”) agenda into the highest level of American jurisprudence (though Gorsuch refrains from using the acronym itself). This is the first time that the Court has used the term “transgender” and “identifying” as male or female in any of its decisions. It is also the first time that the Court has substantively referred to “sexual orientation,” which is one of the most commonly used terms in the Gorsuch opinion, more than transgender. In the gay marriage decision, Obergefell v. Hodges (2015), Reagan appointee Anthony Kennedy did not use the term “transgender,” nor did he speak of persons “self-identifying.” He did use the phrase “sexual orientation” sparingly. Likewise, in the sodomy case, Lawrence v. Texas (2003), the words “gender,” “transgender,” and “identify” were not used by Kennedy. “Gender,” “transgender,” and “self-identify” do not appear in Kennedy’s decision in Romer v. Evans (1996), the case concerning Colorado’s attempt to restrict sex discrimination to “sex.”

Title VII’s legal prohibition of sex discrimination in the Civil Rights Act of 1964 was based on the verbal and cultural assumption that everyone knew that there were two sexes, male and female. There was no need to define “sex” in the statute, and it would have been regarded as astonishing to do so, the equivalent of attempting to define the difference between “night” and “day” or describe how “gravity” works. Today, in light of Gorsuch’s opinion and its emphasis on terms like “transgender,” “sexual orientation,” and “self-identifying,” it now appears to be necessary for the EEOC to publish regulations defining terms. For instance, what exactly is “non-binary” status, a phrase that is not even concerned with sex?

The complexities of the new vocabulary are not just problems for employers and their HR departments, but also for conversation in the lunch room. Even before Gorsuch’s opinion, mere “LGBT” had already been declared insufficient by the media, academia, and other elite institutions. For example, the nationally powerful “queer affirming network,” Black Lives Matter, cites “LGBTQIA+” as one of its institutional focuses. What percentage of Americans even know what the last four of those mean? And, in general, what words will Americans at work be allowed to use to describe their fellow human beings? The corporate arm of the LGBT alliance will, no doubt, be ready to assist, as 206 corporations, including the most glamorous, Amazon, Nike, Apple, Facebook, and Microsoft, joined together in an amicus brief urging the Court to do what it has now done.

“Future” Cases Already Decided

At the very end of his opinion, Gorsuch makes a startling dismissal of those who contend that “sex segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today.” It is startling because a funeral home’s dress code was the factual basis of one of the two other cases combined with Bostock (Harris Funeral Homes v. EEOC). In his perfunctory reference to the case, Gorsuch does not use the word “dress” or the phrase “dress code,” instead saying that the employee was fired after informing the funeral home that she wanted to “live and work full-time as a woman.” He thereby deliberately omits the sole cause for the employee’s firing. The official Syllabus summarizing the Court’s ruling likewise omits mention of the dress code when citing the Harris case.

The funeral home’s brief describes the dress code: “Harris’s employees agree to follow a professional, sex-specific dress code, consistent with industry standards and as federal law allows.” For the firing of the employee who brought the case, “the decisive consideration was [employee] Stephens’s insistence on violating the sex-specific dress code at work.” The purpose of that policy was “so that clients can focus on processing their grief, not on the funeral home or its employees.” In addition, employer Harris had concerns “about his female employees and clients who would be sharing a single-sex restroom with Stephens.” The Sixth Circuit below made explicit findings in favor of Stephens’ Title VII right to violate the funeral home’s dress code and also cited its previous decisions requiring same-sex bathrooms.

There is more. At the end of his opinion, Gorsuch dismisses “the employers’ fear” that “complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions.” That is one of the “questions for future cases.” However, he goes on to note that Harris did pursue a claim in the case based on the federal Religious Freedom Restoration Act as far as the appeals court, where he lost, but then decided not to do so at the Supreme Court. Nonetheless, in his Supreme Court brief, the “devout Christian” Harris pleads that his “life’s purpose is to minister to the grieving.” And, in fact, his funeral business is to him a Christian undertaking and “mission,” a description that is “posted prominently on its website.”

Thus, in direct contradiction of Gorsuch’s reassurances and his lack of candor, this case explicitly stands as a precedent forbidding dress codes based on sex. That “future” question is answered. What is more, it goes on to stand as a powerful signal and citable authority prohibiting single-sex restrooms. And, finally, it contains not only a district-court, appeals-court, and Supreme Court record of a relevant Free Exercise claim, but also specific language in a Supreme Court brief describing the factual basis for that claim. Is this not a sign that the free exercise question has been answered, too?      

Even compared to other society-changing decisions of the Supreme Court, the wide-ranging effect of this decision will be profound. Although Roe, the abortion decision, opened a permanent moral divide in the country, abortions themselves are singular and happen in private. People do not generally know who among their contacts and friends has or has not had an abortion. Per the result of Obergefell, gay marriage is more public, of course, but it does not directly affect the right of private association. The difference here is that all adults work at least five days a week for most of their lives. No federal statute can have a more pervasive direct influence on daily life than Title VII. It applies to all workplaces of any kind, including religious ones, of more than 15 employees. With its broad scope (covering both sexual orientation and self-identity in all their varieties) and heavy responsibilities on employers (affecting hiring, firing, promotion, workplace environment, dress codes, bathrooms, and mandatory workplace “human relations” training), the influence of the newly amended Title VII on our daily life has now been vastly increased.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 24, 2020 at 07:51:23 am

If the 1964 law used the word gender for the word sex, would the judges' decision be less problematic for you? The issue then would be whether gender could be self defined.

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Curious
on June 24, 2020 at 14:04:27 pm

Nothing biological can be self-defined.
If I run a factory that needs to use hydrogen, but I don't want to go through the legal and safety hoops involved in the approval process, may I declare that my hydrogen is air? If I do, is anyone else forced to agree?

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RAM
on June 24, 2020 at 19:15:17 pm

" If I do, is anyone else forced to agree?"
why, of course, silly - BUT only those whose curiosity outweighs their deliberative capacities.

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Guttenburgs Press and Brewery
on June 24, 2020 at 09:10:30 am

First comes the will to decide in a particular way. Then comes the theory designed to support it.
A relevant quote from "Making Sense of Suffering" by Rabbi Yitzchok Kirzner:
"Rabbi Elchonon Wasserman, one of the great leaders of European Jewry in the generation leading up to the Holocaust, asked: If the Torah warns against false ideologies and philosophies, why does it speak of the heart and not the mind? He answers: False beliefs are raised not so much by a defective intelligence as by a perverted heart. The heart is the seat of our desires and will, and those desires are the source of all distorted thinking.
To be sure, it is possible to reduce one's subjectivity. To the extent that a person gains control of his desires, he reduces the problem of bias."

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RAM
on June 24, 2020 at 09:13:49 am

In a civilized country under the rule of law Gorsuch would have already been impeached, convicted, disbarred and jailed for his manifestly deranged and lawless depravity. No danger of that here where the ruins of our locked down society are manifest evidence it's neither civilized nor under the rule of law. It's why the Founders knew we'd need the 2nd Amendment, when our government has so grossly failed us. Only God can save us now, as they also wisely understood from personal experience.

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Russ Davis
on June 24, 2020 at 09:23:04 am

I tried to add the following as a reply, but it didn't seen to work.
PS A fine refutation of the "homosex-" and "gay" nonsense can be seen in "The gay invention" at touchstonemag.com Also see the insane attempts to promote such deranged perversion only tolerated by a tiny minority in the '60s ably refuted by DrJudithReisman.org

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Russ Davis
on June 24, 2020 at 09:26:41 am

Constitutional integrity is not preserved by attempting to elevate or expand meaning to substitute for sound discretion in legislative action. America's crisis of conscience has arisen because of a failure to put the legislature thru its exercise according to Constitutional limitation, which, in this case and others, would have resulted in NO Federal action, Constitutional rights, based on vested use, not reaching, quite properly, the clear deviations from common morality practiced since time immemorial. Equal protection of the law was never intended or practiced to protect moral and social deviance universally accepted as such, and there despite a modern fad of moral relativism. The measure of our civility and culture is not established in the promotion and coercion of deviant practices which undermine settled institutions such as gender, sexual orientation, marriage and family. Justice Gorsuch perhaps unduly influenced by his 'pastor' and her apparently 'Bishop Spong' approach to the Scriptures. The Olympians, contrary to the Stats Recht crowd, do not constitute the moral conscience of the country, but are demonstrating a dangerous departure from the rule of law in its most precious attribute, its immutability, and there to putting real fundamentals at risk in the clearly foreseeable reaction, if only from a prohibition arising from the 'affirmative' in the resulting coercion.

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gdp
on June 24, 2020 at 15:14:18 pm

The opinion hijacks textualism, shows originalism to be morally-ungrounded and subject to the same abuse as "living constitutionalism" and confirms the dangerous irony of Justice Kagan's remark, "We are all originalists now."
It also highlights the importance of relying on legislative history if the Court is to discern statutory meaning where the language is ambiguous.

Neither the statutory language nor its history are ambiguous, which means personal moral and political bias may have been a factor. Gorsuch is an Episcopalian (he attends my local Episcopalian Church) which is the most Progressive, openly Leftist of Christian faiths and the first major denomination to give Biblical blessing and official religious sanction to homosexuality and transgenderism.

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paladin
on June 26, 2020 at 17:39:52 pm

As a non-mathematical subject, there is no escaping interpretation in law. Every legal opinion may be interpreted as opinion and preference clothed in reason. Law school should train every graduate in logic.

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xkz
on June 25, 2020 at 00:09:49 am

Thomas is the one justice grounded in classical natural law, thus is the one firmly reliable vote in terms of having a rigorously defensable philosophical realism and outlook of eminent and eminently long historical standing - Aristotle, Aquinas, among others' influence and support, e.g., Maimonides, Grotius, Blackstone, to name but three historical eminences. Gorsuch is a NNT, so-called new natural law guy, reflecting a philosophical grounding of dubious worth, an outlook which has no notable historically defensable tradition (a few decades).

The originalism and textualism of the other ostensibly or putatively conservative justices, ultimately and in better grounded philosophical terms, is nothing but a kind of placeholder. Not mere contrivances, nonetheless they practically beg to be abused along casuistic and sophistical lines, certainly so in times such as ours where heart, mind and soul are ever navigating and variously succumbing to the latest incarnation of Charybdis and Scylla, some soothing siren song or some vortex that tempts and flatters some intellect into being too smart by a half.

Late modernity and our sophistical post-modern poseurs have too many enticements and foils to be withstood by anything other than a solid philosophical realism that has reached it's convictions in a hard won manner. Again, Justice Thomas is an example in this vein, though his is but one such path and example.

Unless conservatives quit being cowed into submission and confusion, into a dissolute and debased state, unless they come to recognize the warrant and the need for a responsible and deeply probative philosophical realism, they will never come to fruition and the entropy of modern, late modern and post-modern pretensions will ever result in dissolute states.

Again, as noted in a nearby discussion, Orestes Brownson's and others' appreciation of America's founding, while also correcting weaknesses in it's modern, social contract supports, and doing so along the lines of a more appreciable philosophical realism, reflects a particularly refined example in the manner suggested.

The Federalist Society, take note.

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Michael Bond
on June 25, 2020 at 00:20:17 am

“Make no mistake: this decision, this piece of legislation, will have effects that range from employment law to sports to churches. There’s only one problem with this piece of legislation: it was issued by a court, not by a legislature.”- Sen. Josh Hawley

First and foremost Pope Benedict recognized and confirmed there is a difference between biological sex and desire/inclination/ orientation. Biological sex refers to personhood, being, in essence, male or female, (a son or daughter, a brother or sister, a husband or wife, a father or mother ...), whereas desire/inclination/ orientation, is not a person but an urge to act or feel a certain way towards a person, place, or thing. To deny the complementary essence of being, in essence, a son or daughter, brother or sister, husband or wife, father or mother is sexual discrimination.

All disordered inclinations need to be transformed if we desire not to be lead into sin. Sin is devoid of Love.

Love, which is always rightly ordered to the inherent personal and relational Dignity of the persons existing in a relationship of Love, is devoid of lust.

The problem with this legislation is that it justifies discriminating against the complementary essence of being in essence, a beloved son or daughter, while claiming to be upholding the essence of Title VII of The Civil Rights Act Of 1964, defying The Law Of Noncontradiction.

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Nancy
on June 25, 2020 at 00:25:13 am

“Make no mistake: this decision, this piece of legislation, will have effects that range from employment law to sports to churches. There’s only one problem with this piece of legislation: it was issued by a court, not by a legislature.”- Sen. Josh Hawley

First and foremost Pope Benedict recognized and confirmed there is a difference between biological sex and desire/inclination/ orientation. Biological sex refers to personhood, being, in essence, male or female, (a son or daughter, a brother or sister, a husband or wife, a father or mother ...), whereas desire/inclination/ orientation, is not a person but an urge to act or feel a certain way towards a person, place, or thing. To deny the complementary essence of being, in essence, a son or daughter, brother or sister, husband or wife, father or mother is sexual discrimination.

All disordered inclinations need to be transformed if we desire not to be lead into sin. Sin is devoid of Love.

Love, which is always rightly ordered to the inherent personal and relational Dignity of the persons existing in a relationship of Love, is devoid of lust.

The problem with this legislation is that it justifies discriminating against the complementary essence of being in essence, a beloved son or daughter, while claiming to be upholding the essence of Title VII of The Civil Rights Act Of 1964 based on sex.

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Nancy
on June 26, 2020 at 19:51:08 pm

It sounds like you are picking and choosing your Popes according to whether they agree with you. Consider the current stance of the Catholic church.

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xkz
on June 25, 2020 at 08:12:22 am

The remarkable feature of the decision is that it would have made no difference if congress had defined "sex" in the statute, even explicitly to exclude homosexualilty and transgenderism. Gorsuch claims a right to redefine statutory terms because they may mean something different now than they did when cast in legislation. And, of course, the court decides the current meaning. This is judicial tyranny.

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Fred Wild
on June 26, 2020 at 17:41:49 pm

The argument would be entirely different if the law was explicitly defined. It would be about the rightness of the original intent, rather than the interpretation of the law.

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xkz
on June 26, 2020 at 10:28:56 am

Here is a very good take on gorsuch's brand of textualism by Josh Blackman and Randy Barnett:

https://www.nationalreview.com/2020/06/justice-gorsuch-title-vii-cases-half-way-textualism-surprises-disappoints/

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gabe
on June 26, 2020 at 17:33:39 pm

From this article, it is again clear that originalism is simply a way of getting what originalists want, rather than a reasonable stance. Gorsuch's interpretation of language based on what it means in a modern context is correct. If you don't like the way language has changed, you should amend the laws to be more explicit on what you think they say.

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xkz
on June 27, 2020 at 18:57:45 pm

I had a roommate who accounted himself as a "Carnal Christian", who had a strong belief (in his belief) but who strongly felt the strength of the overwhelming glue of physical attraction. (As a radiology tech student, he had a skeleton, but it wasn't kept together by glue but by wires.) He had a dream that he was at a cocktail party, but nobody with whom he was chitchatting had a head, any clothes, or any feet. He was engaged in socializing with naked torsos. He interpreted the dream to mean that the overwhelming passion of physical relationships had rendered his acquaintances, in the context of his strong physicality, as just animated body parts, but without any personhood.

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John Smith
on June 28, 2020 at 09:59:24 am

XKZ misses the point:

"If you don't like the way language has changed, you should amend the laws to be more explicit on what you think they say."

And THAT point IS that should you not like what the language implies (demands, actually) then the Legislative Branch SHOULD amend the Laws and NOT the Judicial Branch. considering that numerous attempts have been made by various elements of the Legislative to "change" as per gorsuch reasoning, and all have died in committee, it should not surprise anyone that the Legislative has decided to NOT change the Law or more importantly the ENGLISH LANGUAGE.

apparently, however, I am one of those dinosaurs that believes what COTUS says: "...ALL legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives"
Then again under the [process of "gorsuchization" this MUST surely mean that the Judicial shall also have lawmaking powers as one may extrapolate from interpretation and arrive at legislation.
Oh the power of fantasy coupled with the *clever* and agile mind of the legal academy.

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gabe
on June 29, 2020 at 10:45:17 am

C. S. Lewis once introduced himself to the university class before him as a "specimen of old Western man". It has taken us as Americans quite some time to finally see that which he had already seen many years ago.
I think that you (as "one of those dinosaurs that believes what COTUS says") and C. L. Lewis himself would have understood each other well. In any event, we may hope that knowledge and courage will save honor and reason.

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Latecomer
Trackbacks
on June 29, 2020 at 06:28:13 am

[…] changed last week, when several commenters supported my assessment after the Supreme Court’s landmark decision in Bostock v. Clayton County to extend Title VII to include discrimination on the basis of sexual […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.