Bostock v. Clayton County is the first U.S. Supreme Court decision that directly addresses the issue of transgender rights. At issue is the meaning of the word “sex” in the Civil Rights Act of 1964 and, specifically, whether the word “sex” encompasses sexual orientation and gender expression/self-identity. Policy questions aside, the Supreme Court has once again proven an unsettling enthusiasm for enacting laws without Congressional approval or the president’s signature. Led by Justice Neil Gorsuch, the majority of the Court ignored canons of statutory interpretation and decades of legislative history in order to read a meaning into the law that was never intended. This decision is celebrated by activists as a victory that they have continuously been denied by the deliberative and democratic legislative process, but it represents a significant blow to authentic diversity, the separation of powers, and the rule of law.
The plaintiffs in these cases include a transgender funeral home worker, a homosexual skydiving instructor, and a homosexual government employee. All three lost employment due to their status as homosexual or transgender and sued to recover damages, claiming they were fired because of their “sex.” The Court decided to combine all three cases, and this week the nation learned that lurking beneath the plain meaning of the text of the 1964 Civil Rights Act is an expansive definition heretofore undiscovered.
Acts of jurisprudential sleight-of-hand like this one are far too common. It is likened to a “pirate ship” sailing under a “textualist flag” in Justice Samuel Alito’s masterful and devastating dissent.
Most significant is the case of Harris Funeral Homes, which fired a transgender employee who was hired as a man and who initially wore men’s clothing but later decided to dress and present as a woman. Gorsuch found that in this case the employer’s decision was bound up with the employee’s sex. A man would never be fired for dressing like a man, so a woman could never be fired for dressing like a woman. Any disparity would be impermissible under the law. Gorsuch has assumed, however, a subjective answer to the question, “What is a woman?” Up until very recently, this question has had an obvious and objective answer that would almost certainly be the type of fact ripe to be considered by way of judicial notice, a legal procedure that admits “notorious or well known” facts into evidence. The answer is now a topic for strenuous debate.
This decision contains significant implications for the nation’s democratic self-determination and Americans’ unalienable rights. The Court has pledged that there was never a consideration of religious freedom in this case, so neither the Religious Freedom Restoration Act (RFRA) nor the exclusive rights of churches to consecrate their own clergy as recognized by the Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is in peril. It is hard, however, to place much stock in this assurance given the ease with which six justices undermined the constitutional order and effectively rewrote the Civil Rights Act of 1964.