ANALYSIS/OPINION: On Monday, U.S. Supreme Court Justice Neil Gorsuch issued the Roe v. Wade of religious liberty. In Bostock v. Clayton County, the Court held that Title VII of the Civil Rights Act of 1964 protects gay and transgender individuals from workplace discrimination. Thus, Bostock turns on a simple application of Title VII’s text. In a separate dissent, Justice Kavanaugh takes issue with the majority’s conclusion with respect to sexual orientation because it does not comport with the “ordinary meaning” of sex discrimination. Roberts joined Gorsuch’s opinion in full and did not write a separate opinion. To learn more or opt-out, read our Cookie Policy. Turning to the employers’ arguments about legislative purpose and consequences, the Court emphasizes that when the text of the statute is clear and unambiguous, legislative history has no bearing. Having laid out this rule, Gorsuch then explains why discrimination against LGBTQ employees constitutes “sex discrimination” by laying out two examples: Consider, for example, an employer with two employees, both of whom are attracted to men. Kelly S. Hughes Charlotte Author The recent Bostock v. Clayton County, Georgia decision, in which the Supreme Court of the United States ruled that an employer that fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964, has received a … But the 6-3 majority opinion in Bostock was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts. Justice Kavanaugh filed a dissenting opinion. By choosing I Accept, you consent to our use of cookies and other tracking technologies. The basis for the Court’s ruling in Bostock v. Clayton County was summarized by Justice Gorsuch in his majority opinion: “An individual’s homosexuality or transgender status is not relevant to employment decisions. Justice Neil Gorsuch’s majority opinion in Bostock v.Clayton County, a Supreme Court decision extending employment protections to gay and transgender people, kicks off a … Bostock is, undoubtedly, a major victory for LGBTQ rights — before Bostock, it was still legal for employers to discriminate on the basis of sexual orientation or gender identity in most states. With respect to sexual orientation, the employees argued that employers discriminate on the basis of sex when they rely on sex stereotypes that men should be attracted to women and women should be attracted to men. Both Justice Gorsuch’s majority opinion and the dissents by Justices Alito and Kavanaugh offer avowedly textualist analyses of Title VII’s “ordinary meaning,” yet their reasoning and conclusions diverge. If you picked B, you agree with Justice Alito, who wrote a scathing dissenting opinion. of Water and Power v. Manhart. The Trump-appointed justice Neil Gorsuch wrote the majority opinion. All rights reserved. Bostock v. Clayton County 590 U.S. ___ (2020) was a United States Supreme Court case that illegally ruled that members of the LGBT community were "protected" under Title VII of the Civil Rights Act of 1964 through judicial activism . … That is, if an employer permits its female employees to have sexual and romantic attractions to men but denies that same right to male employees, it is engaged in sex discrimination. Remarkably, Bostock is a 6-3 opinion. It treats men differently than women. He passed. Policy Staff. At the very least, Bostock suggests that this conservative Supreme Court can follow the clear text of a law, even when that reading points in a liberal direction. Argued October 8, 2019—Decided June 15, 2020* In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. And, because discrimination on the basis of sexual orientation or gender identity necessarily requires an employer to treat some male employees differently than some female employees, or vice-versa, such discrimination is illegal. It also rebuffs the employers’ hypothetical that an employer can refuse to hire LGBTQ applicants under a blanket anti-LGBTQ policy without ever asking the employee’s sex. In a 6-3 ruling of a consolidated group of cases styled Bostock v. Clayton County, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” under Title VII of the Civil Rights Act of 1964.. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision. The majority opinion of Bostock recognizes the differences between these identities and simultaneously acknowledges the connectedness among them. For Justice Gorsuch, delivering the majority judgment, ‘sex’ means (or meant in 1964) biological distinctions between men and women … Today, the Supreme Court ruled in three consolidated cases styled Bostock v. Clayton County, in which the justices considered whether or not the term “sex” will extend to include “sexual orientation” and “gender identity.”. In fact, “many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’ at the time of the law’s adoption.” Here, the Court cites Oncale v. Sundowner Offshore Services, Inc., which held that same-sex sexual harassment violates Title VII even if it was not the “principal evil” Congress sought to target. Justice Neil Gorsuch authored the opinion for the 6-3 majority of the Court. The same is true of a box asking if an employee is “homosexual or transgender.” If an employer wished to write out instructions for who should check the box, it would be impossible to do so without words relating to sex. Liability under Title VII, the Court instructs, is not governed by “conversational conventions.” Conversational speakers do not naturally list every but-for cause of an employment event, but such causes are still relevant to finding a Title VII violation. In Bostock v Clayton County 590 US_ (2020), the US Supreme Court decided, by a 6-3 majority, that under Title VII of the Civil Rights Act 1964, discrimination “because of…sex” includes discrimination because of sexual orientation or gender identity. Whether and how the First Amendment or the Religious Freedom Restoration Act may interact with Title VII is for a future case to decide. Today's News & Commentary — December 17, 2020, Amy Coney Barrett and the Overconfidence and False Modesty of Textualism, Amy Coney Barrett is as Anti-Worker as the Rest of Trump’s Judges, Today’s News & Commentary — September 24, 2020, Criminal Records Exclusion, “Rational Discrimination,” and Ban the Box, Commentary Round-up: Bostock v. Clayton County. Bostock v. Clayton County, the Supreme Court’s latest adventure in legislating, has already seen enough compelling analysis to raise some troubling questions. In April, Vox launched a way for readers to support our work with financial contributions — and we've been blown away by the response. Discrimination “because of ... sex” occurs whenever an employer treats male employees differently than female employees, or vice-versa. The Court’s decision was fairly surprising, as the Justices divided 6-3 in favor of the employees, with conservative Justice Neil Gorsuch authoring the opinion. The majority opinion has virtually no policy analysis or political rhetoric, and it lacks the kind of inflated pseudo-philosophic pontification that Kennedy favored. Clayton County Supreme Court opinion and dissents. A non-exhaustive list: 1. Catholic League president Bill Donohue blasted this week’s Supreme Court decision in Bostock v. Clayton County, saying the majority opinion written by Justice Neil Gorsuch rests on “flawed anthropology.”. From these understandings, the Court articulates a clear rule: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”. Bostock v. Clayton County was about the firing of Gerald Bostock after his employer (an agency of Clayton County… What just happened? Both Gorsuch, a Trump appointee, and Chief Justice John Roberts, a conservative appointed by President George W. Bush, joined the majority. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. June 15, 2020. And the Supreme Court is expected to hear a case next fall asking whether religious organizations have a broad right to engage in anti-LGBTQ discrimination. With respect to gender identity, they argued that employers discriminate on the basis of sex when they rely on sex stereotypes about how people assigned a certain sex at birth should identify and behave. If a male and female employee are both attracted to men, but the employer only fires the man, the decision is because of sex. Bostock v. Clayton County, a landmark Supreme Court decision holding that federal law prohibits employment discrimination against LGBTQ workers, was a test of Justice Neil Gorsuch’s principles. Neither man has shown much sympathy for LGBTQ rights plaintiffs in the past. As established in Phillips v. Martin Marietta Corp., sex need not be the sole cause of a discriminatory action to violate Title VII. A male and female employee who are both attracted to men may be different because of their sex, but they are also different because of their sexual orientation. But the sheer force of the plaintiffs’ textual arguments in Bostock appears to have weighed heavily on both men. We want to add 2,020 more founding contributors to our supporter base by the end of the year. Remarkably, Bostock is a 6-3 opinion. The Court also rejects arguments that Congress could have opted to use more specific language if it intended to protect these groups, or that Congress signified anything about Title VII when it failed to pass legislation explicitly barring LGBTQ discrimination. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Gorsuch is a vocal proponent of “textualism,” the belief that the meaning of a law turns on its words alone, not on the intentions of the law’s drafters. And Bostock forced Gorsuch to decide between his own conservative politics and following the broad language of a landmark civil rights law. Justice Kavanaugh’s dissent showed that the majority did not interpret Title VII of the 1964 Civil Rights Act. We use cookies and other tracking technologies to improve your browsing experience on our site, show personalized content and targeted ads, analyze site traffic, and understand where our audiences come from. Excellent Critiques of Bostock Ruling By ED WHELAN June 25, 2020 9:51 AM I’ve run across several excellent critiques of Justice Gorsuch’s majority opinion in Bostock v. Clayton County (on top, of course, of the compelling dissents by Justices Alito and Kavanaugh). Help us reach our goal by making a contribution to Vox today, from as little as $3. 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