by Tim Sommers
Some good news, amongst all the bad this month. Our medieval Supreme Court took a break from being irredeemably awful to decide a case in the right way for the right reason. In Bostock v Clayton County, Georgia, Neil Gorsuch – yes, that Neil Gorsuch, the one nominated to the court by Donald Trump, who once ruled against a man in an unlawful termination case for leaving a truck by the side of the road rather than freezing to death in it – wrote the decision for himself, Chief Justice John Roberts and the four more liberal justices. The Court concluded that an employer violates the law – specifically, Title VII of the Civil Right Act of 1964 which prohibits employment discrimination based on race, color, religion, sex and national origin – “when it intentionally fires an individual employee based in part on sex…” including sexual orientation and gender identity. “It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision,” the Court affirmed, and, for the first time, ruled that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
With uncharacteristic clarity, Gorsuch explained why gender identity and sexual orientation discrimination are sex discrimination:
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.
That this is the right decision will be self-evident to progressives and LGBT+ advocates, so let’s focus on why this case was decided for the right reason. Read more »