ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, June 22, 2020

Guest Post by Joshua Silverstein on Bostock, Part I


A Guest Post by Joshua Silverstein (left)

Part I: Justice Gorsuch’s Textualism and the Critical Conceptual Issue in Bostock.

Silverstein  Josh -- Official PictureIn Bostock v. Clayton County, the U.S. Supreme Court held that Title VII, the principal federal employment discrimination statute, bars discrimination on the basis of sexual orientation and transgender status.  In this and the following posts, I provide rather detailed comments regarding the legal analysis in the case as a supplement to articles and blog posts I’ve seen across the web that focus on other aspects of the decision.

Title VII makes it “unlawful . . . for an employer to . . . to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  (Emphasis added.)  The plaintiffs in the various lawsuits that constitute the Bostock case argued that the prohibition on discrimination based on “sex” also bars discrimination based on sexual orientation and transgender status.  The Supreme Court agreed by a 6-3 margin, with the four liberals and Chief Justice Roberts joining the majority opinion written by Justice Gorsuch (pictured, right).  Justice Alito wrote a dissent, joined by Justice Thomas, and Justice Kavanaugh wrote a separate dissent.  I think the majority’s position is more persuasive and thus I believe the case was correctly decided. 

In this first post, I lay out some basic principles of statutory interpretation and provide an overview of the critical conceptual issue at the center of Bostock.

Associate_Justice_Neil_Gorsuch_Official_Portrait_(cropped_2)Justice Gorsuch adopts a textualist approach to the construction of statutes in the majority opinion.  Under textualism, courts interpret “a statute in accord with the ordinary public meaning of its terms at the time of its enactment.”  Maj. Op. at 4.  Legislative history regarding (1) what the adopters of the law intended it to mean, (2) what they sought to accomplish in passing the law, and (3) how they understood the scope of the law (i.e., to what cases they expected it to apply), is not controlling.  Indeed, legislative history isn’t even relevant if the statutory language is clear.  It is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  Maj. Op. at 14.

The primary justification for textualism is that it advances the rule of law.  An essential feature of the rule of law is that people are governed by the rules of law, and not by something else that may be undiscoverable by the citizenry, such as what legislators think about the rules.  “The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”  Maj. Op. at 24 (emphasis added).

Note that this doesn’t mean that legislative history is always irrelevant.  If a law is ambiguous, many judges believe that legislative history can be used to assist in resolving the ambiguity.  Maj. Op. at 24.  This history can, for instance, explain how at least some competent users of English understood the words of a statute.  See Kav. Dis. at 16.  But what legislative history cannot do, among other things, is override clear statutory language.

The principles of textualism required the Supreme Court in Bostock to determine the ordinary public meaning of Title VII in 1964, the year the statute was adopted.  Maj. Op. at 4.  And if the statute’s language is unambiguous, then what members of Congress intended or expected Title VII to accomplish (or not accomplish) by including “sex” in the law is irrelevant to the analysis.

Critically, however, the central issue in the case is not the ordinary meaning of “sex” in the mid 1960s.  All nine of the justices agreed with the defendants that the word “sex” does not include sexual orientation and transgender status as a matter of linguistic meaning.  See Maj. Op. at 5 (“[W]e proceed on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.”); Alito Dissent at 5; Kavanaugh Dissent at 11.

Instead, the case primarily turns on the conceptual relationship of discrimination based on sex to discrimination based on sexual orientation and transgender status.  In the majority’s view, sex discrimination is necessarily connected to both sexual orientation discrimination and transgender status discrimination.  More specifically, the majority found that it is impossible to discriminate on the basis of sexual orientation or transgender status without also discriminating on the basis of sex.  Here is one of Justice Gorsuch’s statements of this point: “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.”  Maj. Op. at 2 (emphasis added).  Accordingly, when an employer makes an adverse employment decision because of an employee’s sexual orientation or transgender status, the employer has discriminated against the employee “because of such individual’s . . . sex,” in violation of Title VII.

Tomorrow’s post explores the reasoning underlying Justice Gorsuch’s claim that discrimination based on sexual orientation or transgender status necessarily involves discrimination based on sex.

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