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.
If gender identity discrimination and sexual orientation discrimination are illegal forms of discrimination, there are at least three other constitutional approaches the Court might have taken.
(1) The Court might have made a broader claim that LGBT+ persons constitute a distinct class protected directly under the Equal Protection Clauses of the Constitution – the 14th Amendment, specifically. This Reconstruction Amendment says, among other things, that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor deny to any person within its jurisdiction the equal protection of the laws.” The 14th’s purpose was not to end slavery, that was the 13th, but instead it extended legal rights and protections to non-White citizens. In the 1970s, the 14th’s protections were extended to cover sex as a protected class.
So, we could decide that sexual orientation and gender identity discrimination create their own separate and protected class or classes.
But there are two problems with this. First, either might leave the other out. A trans person might be sexually attracted to someone of their own gender – or to the opposite gender. A lesbian or gay person does not inherently present a challenge to other gender norms. We could still try to make the case that both kinds of discrimination are inspired by animus towards people who violate social norms about gender. But the Court chose a more straight-forward route.
Second, creating a new, separate protected class or classes would have been a bigger step for the courts. There are some precedents supporting sexual orientation as delineating a suspect or protected class. But this would still have been a more fundamental change to get the same result. And there are, as far as I know, no helpful precedents for transgenders.
(2) We could also choose to treat orientation or gender identity as covered by some unenumerated fundamental right – say, the right to sexual and/or gender freedom. Of course, the Court should recognize such a right. And such a fundamental right does have some prima facia claim to fit in with other already recognized fundamental but unenumerated rights, like marriage , family, intimacy and autonomy in personal/sexual decisions and relations (from Griswold v Connecticut to Obergefell v Hodges).
But the test the Court currently uses in evaluating unenumerated fundamental rights (the three-pronged Glucksberg test (Washington v Glucksberg (1997)), says that new rights must have a sufficient history as rights, a history specifically in the United States, and be deeply rooted in central traditions arising out of our democracy, specifically. Not a history or tradition of LGBT+ people existing, which of course they always have, but a history and tradition of them being treated with dignity and respect. This would be a heavy lift, obviously since the lack of such a history and a tradition respecting such a right and such people is the problem. Unfortunately, it’s probably best for now to avoid going all the way to claiming a new unenumerated right – especially with this Supreme Court.
(3) Though even more of a heavy lift, another approach to gender identity and sexual orientation discrimination would be to argue against the current “classification” approach to Equal Protection altogether and in favor of a “subordination” approach.
The classification approach simply forbids the use of race and gender. It forbids laws that mention these even when they are meant, specifically, to counteract discrimination. This has been Court’s approach to Equal Protection for over 40 years. It has been the hill on which so many attempts at “affirmative action” have died.
One could argue, against classification, that gender and race are social hierarchies, caste systems with non-white people and women at the bottom and white men at the top. To stay with gender, the original sin for women under patriarchy is defiance of gender norms, just as the original sin of non-cisgender persons is that they defy gender norms. The social forces that support this hierarchy are brought to bear on the defiance of gender norms by anyone. And attachment to that caste system, and its privileges, explains the animus that challenges to it provoke.
Under the subordination approach, whatever enforces gender norms is suspect and remedies to it need not avoid employing “classifications” in pursuit of equality over hierarchy.
But, for better or worse (okay, worse), this is not the approach of the courts presently. And arguably it would require the courts to adjudicate about social hierarchies in ways that some would regard as inherently “political”. After all, ridiculously, the very existence of the “patriarchy” is still considered by some a contested political question.
Better, then, to treat sexual orientation and gender identity discrimination as gender discrimination under the current classification approach.
And so, as I’ve said, the Court seems to me to have made the right decision for the right reasons. It recognized that gender identity discrimination and sexual orientation discrimination are gender discrimination.
In other words, the genus is sex discrimination, the species include discriminating against because of one’s gender; because of one’s gender identity; or because of a proffered mismatch between one’s gender and the gender of the person that you love or would love. Women, lesbians, gays, and transpeople are victims of discrimination based on sex-role stereotyping. And trans people, specifically, who present as one gender are likely discriminated against because they are “really” the opposite gender (and so are still victims of discrimination based on sex role stereotyping). Even if they are discriminated against as men that, again, falls within the current understanding of gender discrimination – even before this ruling.
Consider dress codes at work. Presumably, there are constitutionally permissible rules for creating nondiscriminatory dress codes as a condition of employment. Just to the extent they do not violate the rights of the of cisgendered employees subject to them, so too they do not violate the rights of anyone with any gender identity – as long as they allow for gender self-identification. There is no daylight between a dress code that women and men can be legally expected to conform to and a dress code that anyone can conform to in terms of their own gender identity. Saying to people that they are not to follow the dress code for the gender they self-identify as is either a profound challenge to their gender identity or a way of stigmatizing women in particular or both.
A relevant, current case might seem like a counterexample for such a straight-forward application of gender discrimination to gender identity: Trump’s attempt to ban trans gendered people from serving in the military. Many think the ban reflects animus since it goes against the Military’s own policies and advice (and was Tweeted), but (in any case) the ban is not on women or men – but either men or women “switching” genders.
But, as Justice Kagan pointed out in oral argument in Karnoski v Trump, there has always been an ”extremely simple [relevant] test”: “Would the same thing have happened to you if you were of a different sex?” In this case, in other words, if you now present as a woman, you would not be banned if you presented as a man. If you now present as a man, you would not be banned if you presented as a woman. Furthermore, one could transition to one gender, then back. If the constitutional concern is ensuring this same person legal protection throughout, then laws or employment policies, that require classifying them, at any point, in terms of their gender, ought to be rejected tout court. Again, gender identity discrimination, like sexual orientation discrimination, is gender discrimination.
So, why did Gorsuch and Roberts vote with the more liberal justices on this one? The charitable answer is: for the reasons Gorsuch gave in the written decision.
Here’s the more cynical answer. Chief Justice Roberts is very (rightly) worried about the legitimacy of his extremist court, and he might see that legitimacy as best-served by veering to the left on some cultural issues less central to the disastrous right-wing economic agenda he will likely not compromise on.
The cynical answer is more interesting in the Gorsuch case, though we can’t really go into it here. The supershort version is that, just as Roberts seems to act sometimes against his convictions on behalf of the Courts legitimacy, Gorsuch may be acting against his own tendencies in the service of vindicating his preferred theory of Constitutional interpretation, “textualism”, so that it will have a veneer of legitimacy as he marches (with the Court’s majority) towards dismantling the tattered remnants of our social safety net and destroying the administrative state that protects us from so much that is bad.
On the other hand, maybe, he really is just a textualist. Nah. Wait until the Court gets to the “nondelegation doctrine” and you’ll see what Gorsuch’s “textualism” is really for. (https://newrepublic.com/article/156207/plot-level-administrative-state) And it’s not good.