Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
His logic is simple: An employer cannot discriminate on the basis of sexual orientation or identity without considering sex. “From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex,” he writes. “It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.” He therefore finds, “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred."
Gorsuch dissects each attenuated argument in favor of allowing discrimination against LGBTQ employees. No matter how much the dissenters insist that doing so would be “different” from discrimination based on sex, Gorsuch arrives at the same conclusion: “At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about the statute.” One is left suspecting that the dissenters and the trove of right-wing groups that oppose protections for LGBTQ employees simply want to allow employers to get rid of them if they do not accept their identity (e.g., a man who marries a man). That is the essence of intentional, hateful discrimination no matter how you twist and turn the words of the statute.
The decision quite closely adheres to an amicus brief filed by constitutional scholars Laurence Tribe and Joshua Matz submitted on behalf of several former solicitors general, including Ted Olson and Seth Waxman, and former acting solicitors general Walter Dellinger and Neal Katyal. Tribe tells me that “the decision is a rare shining moment in the midst of all too much darkness," pointing out the concrete impact on millions of Americans and marking “the first victory ever for transgender rights at the Supreme Court — as well as the first clear recognition that discriminating against individuals because of their sexual orientation constitutes sex discrimination pure and simple even if those who wrote the relevant statutes might not have anticipated that reading.”
There are several main takeaways.
First, Gorsuch’s opinion should remind Republicans that a true textualist who gives an honest reading of a statute or the provision of the Constitution at hand is not simply a vessel for evangelical Christians and other right-wingers to impose their views on a pluralistic society. As Tribe puts it, the decision shows that “applying legal texts in accord with their meaning can sometimes triumph over efforts to read the minds of the authors and that at least some Justices, including Justice Gorsuch, are consistent in their textualism even if others, including it seems Justices [Brett M.] Kavanaugh and [Samuel A.] Alito [Jr.] and [Clarence] Thomas, are not.” The opinion therefore has potentially larger meaning in allowing more generous readings of constitutional and statutory protections their authors never anticipated. That is not a deviation from textualism, but rather, its highest expression.
Second, Republicans who defended Donald Trump’s calamitous presidency solely for the appointment of conservative judges might reconsider whether all that enabling, rationalizing and excusing was worth it.
Third, whether intended or not, the opinion reflects a truism in American history: It is the story of the ever-expanding view of America. The gradual recognition that a pluralistic democracy is defined by its ideals, not by the identity of its people.
Fourth, the decision potentially short-circuits the Trump administration’s mean-spirited agenda to wipe out protections for LGBTQ Americans in other venues, including military service and coverage under the Affordable Care Act. Just last week, the Trump administration undid President Barack Obama’s policy that prevented health-care providers from discriminating against transgender patients.
Finally, the opinion — delivered just as Americans are experiencing a revolution in thinking about systemic racism and persecution of African Americans — serves to remind us that while we might be slow in getting there and are diverted time and again, Americans can eventually be prevailed upon to come down on the side of fairness, equality, inclusion and simple human decency.