“A NECESSARY AND UNDISGUISABLE ROLE”: LGBTQ DISCRIMINATION AS SEX DISCRIMINATION One could say it has been the decade of LGBTQ legal rights. No entity has thrown around more weight on this front than the Supreme Court. In 2013, the Court struck down the portion of the Defense of Marriage Act (DOMA) of 1996 that defined marriage as a “legal union between one man and one woman as husband and wife.”1 In 2015, the Supreme Court made it clear same sex couples had a constitutionally protected right to marriage.2 But then, in 2018, the LGBTQ community took a hit when the Court held that a baker was not required to make a wedding cake for same-sex marriages.3 But then, on June 15th of this year there was another big win. The federal circuits had split in recent years on whether Title VII of the Civil Rights Act of 1964, which bans employers with 15 or more employees from discriminating against workers based on sex, encompasses bias based on either sexual orientation or gender identity.4 The 6-3 ruling in Bostock v. Clayton County, Georgia, answered: it does. This opinion was surprising, not only in its result, but in its support by conservative members of the bench, Chief Justice John Roberts and Justice Neal Gorsuch. In fact, Gorsuch authored the opinion. Historical context may best serve us in understanding this opinion. Title VII prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. For our purpose we are focusing on discrimination “because of sex.” What exactly “because of sex” means was the subject of subsequent litigation and legislation. Congress amended Title VII with the passage of the Pregnancy Discrimination Act of 1978, to make it clear that the “terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to . . . pregnancy, childbirth, or related medical conditions.”5 In the same year, the Supreme Court explained that “because of sex” means “treatment of a person in a manner which, but for the person’s sex, would be different . . . .”6 The scope of “because of sex” was broadened in 1989 in Price Waterhouse v. Hopkins, when the Court recognized sex stereotyping as a violation of Title VII. The Court held the meaning of “because of sex” goes beyond biological sex to reach gender, which is a social construct built around sex.7 The plaintiff was denied partnership, and advised to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” if she wished to improve her chances to make partner.8 The Court found this to be impermissible sex stereotyping because discrimination based on lack of adherence to societal expectations of a respective gender is discrimination “because of sex.” A man would not have been denied partnership for failing to wear make-up. Fast forward to 2020. In three linked appeals, the Supreme Court was poised to answer the question whether “because of sex” includes
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sexual orientation and sexual identity. In each case, the employer allegedly fired the plaintiff for being gay or transgender. Gerald Bostock was fired by Clayton County Child Welfare Services Department for conduct “unbecoming” a county employee shortly after it was discovered he played in a gay softball league. Altitude Express fired Donald Zarda days after he expressed that he was gay. R. G. & G. R. Harris Funeral Homes fired Aimee Stephens (who had presented as male) after she notified them that she planned to transition to living and working as a woman. Each plaintiff sued, alleging sex discrimination under Title VII. The Eleventh Circuit dismissed Bostock’s claim as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Zarda and Stephens, respectively, to proceed. In his opening paragraph, Justice Gorsuch framed the issue before the Court as, “whether an employer can fire someone simply for being homosexual or transgender.”9 His answer was clear. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”10 So how does conservative Justice Gorsuch get to such a progressive conclusion? That would be courtesy of textualism, which all conservative members of the bench are stated adherents of. This legal theory asserts that laws should be interpreted only on the basis of a statute’s text and not on extratextual sources, including legislative history and speaker’s intent. The Court was interpreting a statute passed in 1964. As such, the analysis was based on the “ordinary public meaning of its terms at the time of its enactment.”11 Gorsuch first analyzed the term “sex,” and found the meaning to be “status as either male or female [as] determined by reproductive biology.”12 It is important and interesting to note that Gorsuch ceded that Congress in 1964 most assuredly did not intend sex to include sexual orientation or sexual identity, but textualism counsels in favor of a focus on the plain and ordinary meaning of the text of the statute rather than Congress’ intent. The more important analysis was what Title VII said about sex, specifically “because of.” Gorsuch found that “because of ” means and meant in 1964 “by reason of ” or “on account of.” As a result, the Court concluded that “in the language of the law, this means that Title VII’s ‘because of ’ test incorporates the ‘simple’ and ‘traditional’ standard of butfor causation.”13 This in and of itself will have far reaching implications in clarifying causation in discrimination cases going forward. “The ‘but-for’ test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”14
DICTA
September 2020
