SCOTUS’ Landmark Reading of Title VII “Sex” As Encompassing Sexual Orientation and Gender Identity

Parallel to our symposium on Mr Floyd's death and the aftermath, we are running posts on this term's Supreme Court decisions having human rights and civil rights implications.  Prof. Shirley Lin of NYU Law School discusses an unexpected result.

In a historic opinion that reenvisions Title VII as “sweeping” and “expansive,” the Supreme Court ruled that hostility against an individual for “being homosexual or transgender” is sex discrimination in Bostock v. Clayton County, Ga.  One of the broadest readings of Title VII in decades, the 6-3 opinion implicitly honored the courage and perseverance of plaintiffs Aimee Stephens and Donald Zarda, whose cases were consolidated with Gerald Bostock's but who unfortunately passed away before hearing the opinion issued.  The Court recognized their dedication to their employers and, using accessible language, acknowledged their gender identity and sexual orientation with dignity.

The cases hinged upon Title VII’s statutory language, which states simply that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1).  Relying upon reasoning that alternated between textual, plain meaning, and a concerning debut of “ordinary public meaning” as to a remedial civil rights statute, Justice Gorsuch wrote:

"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."

Bostock represents a major shift in how courts analyze discriminatory intent in Title VII cases.  By providing a categorical rule that one’s status, “trait or actions” related to sexual orientation or gender identity, is “sex”-based, the opinion is a landmark victory for LGBTQIA+ communities that further eases the burden judicial interpretations had until now made very difficult in proving claims that raise the social traits of race, color, national origin, and religion.  The opinion acknowledges that but-for causation “can be a sweeping standard” that “often [includes] multiple but-for causes,” but the sea change lies in the following passage:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Among the remarkable aspects of Bostock is its elevation of multiple motives in its broadened description of but-for causation while ignoring the less-preferred alternative called “motivating factor.”  It implicitly responds to a doctrinal correction as to causation instigated by lower courts that read the statute’s plain text to include any subordination of a worker beyond the Court’s gratuitously narrowed articulation of but-for causation over the last two decades.  Those courts read the protected trait of “sex” through social construction evidence, which the Court did in the above passage through a comparative argument.

Notably, because the circumstances of all three plaintiffs did not involve non-binary gender presentation the Court sidestepped having to define “sex” conclusively and left the question for a future case in stating that it “proceed[ed] on the assumption that 'sex' [in 1964] signified what the employers suggest, referring only to biological distinctions between male and female.”  The majority acknowledged “nothing in [its] approach to these cases turns on the outcome of the parties’ debate” over whether sex’s meaning includes “norms concerning gender identity and sexual orientation.”  But implicitly, the Court for now viewed both statuses as a “plus” in the vein of its sex-plus precedent, rather than as subsets of “sex.”  It also reserved for another day the application of religion objections brought by both religious employers, exceptions for ministerial employees, and claims under the Religious Freedom Restoration Act, as none of those issues were raised on appeal.

Not content with the majority’s imputed meaning of sex “in 1964,” in a dissent joined by Justice Thomas, Justice Alito accused the majority of judicial legislating, and Justice Kavanaugh separately wrote: “Seneca Falls was not Stonewall . . . . [T]o think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

Particularly in light of the Trump Administration’s relentless assault on the legal rights of LGBTQIA+ communities, the decision has potent implications for Title IX, which is viewed as analytically identical to Title VII and yielded equally momentous public-school student victories that propelled public support for communities nationwide to affirm transgender students’ gender identity.  Today’s decision indeed marked a euphoric moment for the triumph of principle over ends-driven interpretation.