Somewhere Over the Rainbow? What the Bostock Decision Means for the LGBT Community.

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Somewhere Over the Rainbow? What the Bostock Decision Means for the LGBT Community.

They say Stonewall was a riot. That it finally put LGBT people on the map. That it was the beginning of genuine equality. But prior to last week’s Supreme Court decision in Bostock v. Clayton County, Georgia, LGBT employees could still be harassed, demoted, terminated, or otherwise mistreated at work on account of their LGBT status in about half of the country, without legal recourse or repercussions (the other half had state laws and other protections). Despite same-sex marriage being deemed a constitutional right by the Court in 2015 (see Obergefell v. Hodges, 576 U.S. 644 (2015)), a gay employee who posted on social media about a weekend wedding could be summarily fired on Monday morning. A trans employee could likewise be terminated upon sharing a desire to transition—assuming a trans candidate was hired in the first place. So what does Bostock mean? Is the struggle for LGBT employment protections now over?

Evolving Interpretations of Title VII

Title VII of the Civil Rights Act of 1964 is the touchstone federal civil rights statute prohibiting employment discrimination on the basis of race, color, religion, sex, and national origin. There have been numerous attempts by Congress to add “sexual orientation” and “gender identity” to the classes of traits it protects, but both chambers of Congress and the president never aligned to successfully make that a reality.

The Equal Employment Opportunity Commission (EEOC), the federal agency charged with processing Title VII complaints, declared in 2012 that one of its top priorities was including LGBT employees within Title VII’s protections. In 2015, the EEOC made its priority an official policy by issuing guidance to interpret “sex” in Title VII to include both “sexual orientation” and “gender identity.” The EEOC relied on several cases from federal courts to make its argument that including these two criteria was reasonable and flowed logically from covering “sex” as a protected category.

Over the course of several years, federal courts initially decided to either reject or accept the EEOC’s guidance. Then the Seventh Circuit Court of Appeals reversed course from a previous decision and declared that sexual orientation was protected under Title VII, with the Second Circuit eventually following suit. In a related decision, the Sixth Circuit found that Title VII covered gender identity as well. The Eleventh Circuit, however, denied that sexual orientation or gender identity are encompassed by Title VII. The courts thus created a stalemate that only the Supreme Court could resolve.

“Only the Written Word Is the Law”: A Historical Ruling

Although the forces of equality and full citizenship have been knocking at the door of the courts for some time, this decision was unexpected. Justice Neil Gorsuch, a Trump appointee, along with Chief Justice John Roberts, sided with the four more liberal Justices. Even more surprising, Justice Gorsuch was the author of the 6–3 opinion. By his own admission, Justice Gorsuch felt he had no other choice but to rule the way he did: “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.” With that, Justice Gorsuch expressed what some might call a “textualist” approach to statutory interpretation, looking at the “plain meaning” of the text within its context on the page. Yet at other points, he made sure to state that his interpretation is consistent with the “ordinary public meaning of its terms at the time of its enactment,” suggestive of “original meaning” originalism. See, e.g., §§ II and II(B).

Justice Gorsuch’s central point is rather simple: you cannot discriminate on the basis of sexual orientation or gender identity without necessarily discriminating on the basis of sex. For argument’s sake, he agrees with the employers that “sex” as understood at the time of Title VII’s passage in 1964 referred to “biological distinctions between male and female.” See § II (A). And it is precisely these “biological distinctions” that are always in play when an employer discriminates against LGBT employees or job candidates.

To demonstrate, Justice Gorsuch uses the hypothetical of an employer who does not terminate a heterosexual woman but terminates an otherwise identical gay man on account of his sexual orientation. The employer is fine with an employee being attracted to men—as long as that employee is of the female sex. The male employee’s sex, on the other hand, earned him a termination, and made all the difference in the employer’s decision. While sexual orientation was involved, the crux of the termination was the sex of an employee.See § II (B).

Similarly, if an employer terminates a transgender person who was assigned male sex at birth and who now identifies as female, but does not terminate an otherwise identical female employee who has always identified as female, “sex” is necessarily at play and forms the basis of the discrimination, thereby triggering Title VII’s protections. Id. While Justice Gorsuch’s opinion is grounded in a textualist or “original meaning” analysis, the decision relies on making several logical inferences to fully flesh out the argument.

The majority opinion also holds, consistent with settled Title VII jurisprudence, that “sex” need not constitute the sole reason that an employer unfavorably treated an employee for that treatment to be deemed illegal. As long as “sex” played some role in the decision to take an adverse employment action against a worker, the employer is likely in violation of Title VII. Id.

The Pirates of 2020?

Justice Alito responded with a scathing dissent, claiming that “sex” could not possibly have included sexual orientation or gender identity in 1964, and therefore it cannot do so today. The majority’s opinion, he writes, is “like a pirate ship . . . sail[ing] under a textualist flag,” allowing the Court to simply “update Title VII to reflect what it regards as 2020 values.” See § I (A).

Justice Alito warns of future, unexpected consequences of declaring that “sex” can encompass LGBT realities and experiences. In his view, the Court’s “irresponsible” opinion threatens “freedom of religion, freedom of speech, and personal privacy and safety.” See § IV. He believes it could have consequences for litigation under Title IX, the Affordable Care Act, and up to 100 other federal laws. Id.

The majority opinion, he writes, could lead to women in bathrooms and locker rooms feeling uncomfortable because of people “they regard as members of the opposite sex,” to transwomen unfairly outperforming other females in women’s sports leagues, and to colleges being forced by trans students to integrate their same-sex dormitories. Id. Justice Alito also sees grave consequences for religious institutions, who he believes may be forced to hire LGBT employees or maintain their employment, despite the broad religious exemptions that are already provided by Title VII and case law (see below). Id. Trans folks might even be able to use the Court’s majority definition of “sex” to make health insurance plans cover sex reassignment surgery, he argues, and employers could lose their freedom of speech if forced to address trans people by their preferred pronouns. Id.

It is unclear if Justice Alito’s predictions will come to pass, but they are likely prescient in the context of employment law. Beyond Title VII, existing municipal, county, state, and other laws that bar “sex discrimination” in employment may use the Court’s interpretation of “sex” to encompass LGBT people, providing them additional rights of action. The same might hold true for related non-discrimination ordinances covering housing, public accommodations, and other goods and services.

God and the Gaps: Religious Loopholes

Both the majority opinion and Justice Alito’s dissent acknowledge that Title VII already includes an exemption to its non-discrimination protections for religious institutions. Faith-based employers are permitted to “discriminate” on the basis of religion if adherence to a particular religion is a necessary prerequisite for the job. See 42 U.S.C. §2000e–1 (a) and §2000e–2(e)(2).

More significantly, federal courts have recognized a broad “ministerial exception” to various employment laws, including Title VII, which the Supreme Court formally approved in 2012. Religious institutions are exempt from Title VII liability if they claim that an employee against whom they took an adverse action was a “minister” of their faith. Because the courts do not want to interfere with a religious institution’s religious liberty, they generally defer to how an employer classifies an employee for purposes of litigation. All too often, religious employers can use the label “minister” for employees they would normally never consider ministers as a pretext to shield themselves from litigation. If the courts merely accept this designation, they effectively permit violations of Title VII. This broad loophole to civil rights law can affect hospitals and healthcare facilities, schools and universities, churches, non-profit organizations, social service providers, and any number of other employers.

While the “ministerial exception” blocks suits for all protected classes, it has particularly been used by religious employers to deflect liability for terminating LGBT employees. For a sense of scope, New Ways Ministry has kept a tally of LGBT employees terminated by Catholic institutions in the U.S. over the past thirteen years. New Ways generally only publishes incidents that have gone public. While its current tally is near 100 employees, the group suspects the true number is at least twice as many, likely more. When that figure is multiplied by the number of employees terminated for being members of other protected classes, and then by the variety of religious employers in the US, one gets a sense of the massive scope of this exception.

Justice Alito can bemoan the new rights that LGBT Americans might gain, but the reality is that employees in religious institutions have practically no employment rights even with the Bostock ruling. Coincidentally, the Court heard a pair of cases involving the scope of the “ministerial exception”earlier this year and is set to release its decision in the coming weeks. That decision could narrow the scope of the exception, thereby returning some civil rights to employees. Alternatively, the Court could opt to maintain its already broad scope or even enlarge it, further eroding employment protections for employees in religious spaces.

Title VII Litigation Is Still, Well, Hard.

Title VII’s religious exemption and the “ministerial exception” present obstacles to having one’s day in court. But even independent of these, Title VII litigation is no stroll in the park. It’s statute of limitations is notoriously tight: from 180 to 300 days, and only 45 days for federal employees. Moreover, one cannot file a claim directly in federal court, but must use the administrative process of the EEOC. This process can be slow, confusing, and frustrating. Many complainants wait up to a year or more just to receive a notice of “no finding” and the ability to file in court. Increasingly, many charges of discrimination are simply never investigated by the EEOC.

Perhaps most difficult in Title VII litigation is proving one’s case. The facts in the Bostock cases were rare: the employers’ discriminatory intent for terminating their employees was clear. But when genuine discrimination takes place, employers usually offer as many non-discriminatory reasons as they can muster for their actions. Proving that an employer’s proffered rationale is merely pretext can be an uphill battle. As this appellate attorney’s Twitter thread makes clear, even seemingly clear-cut examples of racial animus are often unsuccessful.

Somewhere Over the Rainbow . . .

The Court’s Bostock decision is no doubt a welcome step forward for the LGBT community and those who care about it. But did it launch LGBT Americans “somewhere over the rainbow,” to a place of sustained equality, genuine respect, and authentic protection from bias? For several reasons, I would say no.

  • Bostock could be reversed. While it might not be likely, Bostock could always be reversed. Judicial appointments have been a top priority of the Trump Administration, which has now appointed 200 judges to the federal judiciary. These judges will determine the nation’s laws—and how to interpret them—on many issues in the years to come, including LGBT rights. More directly, the Trump Administration argued ardently in this case against interpreting Title VII to include protections for LGBT people. This decision is so highly contested that a challenge case will likely be in the works.
  • LGBT interests were not recognized by law in their own right. While the LGBT community at large is likely grateful to have received this decision, the fact remains that “sexual orientation” and “gender identity” will still fail to appear in the text of Title VII. LGBT concerns were instead subsumed under the heading of “sex,” a term originally intended to protect women in the workplace from discrimination. Justice Kavanaugh included a quote from Judge Lynch of the Third Circuit in his dissent. Although Judge Lynch did not think LGBT people should be covered by Title VII, he can be credited with perceiving that the arguments for coverage “ignore . . . the distinctive nature of anti-gay prejudice.” See 883 F. 3d, at 162 as quoted in Justice Kavanaugh’s dissent, §II. LGBT people should not be protected from discrimination by a technicality or through creative argumentation, but rather as a consequence of straightforwardly recognizing their rights to full and equal citizenship in all aspects of life.
  • This opinion was a result of judicial fiat, not congressional action. While most LGBT Americans will likely disregard the mechanism by which workplace protections were achieved, the mechanism is nonetheless significant. Bostock’s egalitarian result was not accomplished through mass grassroots mobilization that pushed lawmakers to reflect their constituents’ concern for inclusivity and justice. That would have been a true win for LGBT people and the nation as a whole. It would have demonstrated that Americans overwhelmingly support their LGBT neighbors and that members of Congress consider LGBT people and their civil rights to be important enough to overcome partisan division and finally pass a comprehensive anti-discrimination bill. The significance of the symbolism of congressional action cannot be understated for the LGBT community—nor for its detractors.

Congress should pass something like the Equality Act to recognize LGBT Americans in their own right as worthy of full citizenship status and protections. The Equality Act recognizes the particularity of the animus that LGBT Americans face. It would provide comprehensive protections, covering public accommodations and facilities, education, housing, and health care. Americans should be grateful for Bostock, but we should not be content with it.

The COVID-19 pandemic has led to the cancellation of many PRIDE events, affording us all the opportunity to reflect on what PRIDE is really about. Recently some have been reminding us, “Stonewall was a riot, not a parade.” Indeed. And the early PRIDE marches post-Stonewall exemplified a creative spirit and an imagination of what the future might look like. They were aimed at securing rights, through both direct action and concrete policy and legal change. With Bostock, the nation has taken a giant step toward full inclusion. But perhaps renewed inspiration from Stonewall and the early PRIDE marches is needed to push us somewhere over that rainbow, where, as the song goes, the dreams that you dare to dream, really do come true . . . .

This post also appears on the author's Medium profile.