Chevron deference should be replaced with a system that accords weight to both contemporaneous and customary interpretations.
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?
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.
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.