In mid-June, with a 6-3 vote, the Supreme Court ruled that Title VII of the 1964 Civil Rights Act, which prohibited discrimination in employment on the basis of sex, also includes sexual orientation and gender identity.
The decision, Bostock vs Clayton County, involved three cases. In two of them, a social worker and a skydiving instructor claimed they were fired for being gay. The third case involved the firing of a funeral home employee (of Harris Funeral Homes) who, after being hired as a man, identified and presented as a woman.
It was expected that the decision would hinge on whether or not the word ‘sex’ should be limited to a biological understanding or expanded to include the categories of sexual orientation and gender identity. The lawyers for the defence argued that when Congress passed the Civil Rights Act in 1964, they had no sense that the word ‘sex’ meant anything other than biological categories. Therefore, ruling for the plaintiffs would amount to re-writing the Civil Rights Act, something only Congress can do.
Justice Neil Gorsuch, in a bit of rhetorical jiu-jitsu, succeeded in rewriting the law even while denying doing so. After claiming to ‘agree that homosexuality and transgender status are distinct concepts from sex,’ he then argued that ‘discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.’
‘Sex’, wrote Gorsuch, ‘plays a necessary and undisguisable role in the decision’ to fire a homosexual or transgender person ‘for traits or actions it would not have questioned in members of a different sex.’ And that, he wrote, ‘is exactly what Title VII forbids.’
In other words, rather than directly saying the word sex in Title VII should include sexual orientation and gender identity, he essentially argued that if employers wouldn’t fire a man for sleeping with a woman, they shouldn’t be able to fire a woman for sleeping with a woman. Extending that logic, if a woman is allowed to dress like a woman, you can’t fire a man for dressing like a woman.
Meaningless definitions
Dissenting Justice Alito (joined by Justice Thomas) wrote: ‘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’. If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation, not to mention gender identity, a concept that was essentially unknown at the time’.
Separately, Justice Kavanaugh complained that the Court was rewriting the law: ‘If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty…[T]he implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.’
Future implications
As this wasn’t a religious liberty claim, it’s unclear as to how this will affect the church in its role as an employer. Beyond redefining language, and reality, it will further undermine religious freedom.
As the Harris Funeral Homes case showed, Christian-owned businesses can be required to hire and accommodate transgender persons even for roles in which it would violate their employer’s moral and religious beliefs (e.g hiring a man who identifies as a women to work in areas where girls and women undress).
Alliance Defending Freedom noted that it will also undermine equal treatment for women by, for example, allowing women’s scholarships to be given to men who believe themselves to be women. And it would jeopardise the dignity and privacy of women, forcing organisations to open women’s shelters, locker rooms and bathrooms to men who believe themselves to be women.
