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Yesterday, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 protects homosexuals and transgender persons from discrimination. The opinion is fairly lengthy, but you can read it here. It’s a big victory for the rights of these communities. Now, it is clear that discrimination against people in these communities is prohibited by Title VII.

Here’s why.
Title VII of the Civil Rights Act of 1964 outlaws discrimination based on race, color, religion, sex, or national origin. Sexual orientation or being transgender are not listed as protected classes in the law. This opinion did not expand the list of protected classes. Rather, it held that discrimination against homosexual and transgender persons inherently involves sex discrimination.

The example the Court gave was a company hiring two employees who are attracted to men. One is male and another is female. Discrimination against a gay employee requires an employer to evaluate and decide to hire or fire based on the sex of its employees. If the employer was allowed to discriminate, it could hire the woman and fire the man. But for the man’s sex, he would still be employed. Therefore, that discrimination is prohibited by Title VII.

Homosexual and transgender people now have protection against discrimination in the workplace. This wasn’t even a fully divided Court: the majority had six justices. And the opinion was written by a Trump appointee, Neil Gorsuch.

I would hold off on celebrating, though.
While I agree with the result of the Court’s ruling, I am concerned about how the Court got there. The path it took is important, because there are some broader principles being used in the case. Gorsuch’s opinion emphasized adhering to the letter of the law as it was written. Everything in the opinion follows from taking a close reading of the law.

In other words, if it isn’t written down, it doesn’t exist. This means that homosexual and transgender people are not protected classes. If Congress, for example, reworded Title VII to say that discrimination “primarily because of” or “solely because of” on account of race, color, religion, sex, or national origin, Title VII protections could get stripped from homosexual and transgender employees.

Similarly, the decision here in Bostock can only apply to broad legislation that prohibits discrimination based on sex. If there are other statutes which limit the application of the term, Bostock can be used to say that homosexual or transgender people do not get those protections. While the Court can choose to expand the case to apply elsewhere, it has the freedom here to make it a very narrow decision.

People need to see how this plays out.
I think it would be a great advancement for my country to have Bostock mark the beginning of equal access to protection by homosexual and transgender Americans. But this equal access is still limited. The Court could have used Obergefell v. Hodges to say that homosexual and transgender persons are a protected class. It didn’t.

Then again, this could just as likely signal a shift in the Court for a conservative approach to safeguarding equal rights. Maybe the Court is interested in equal protection under the law, but it wants to find a less invasive means of applying those protections. This case would be a good example of how a Court can use its power to interpret the law in a way that helps people.

The only problem with this, as mentioned above, is that it binds future courts to ink on a page. All it takes is a temporary and extremist majority in Congress to say it doesn’t like the result, and progress can be undone. I’m afraid that the rights granted yesterday might not be here tomorrow.

Whatever happens next, I think this case is a beginning and not an end.

5 thoughts on “Bostock

  1. It’s a good beginning. An excellent thing it’s done is it’s drawn out the religious right who have finally started openly talking about what they really wanted. Laying out their real agenda which they’d been concealing so far with “cake fights” etc.

    Liked by 2 people

    • I should probably have gone into more depth about the significance of the cake fights. They’re a signal that conservative and religious jurists are trying to modify the law to discriminate against communities they don’t like.

      That movement is why I’m cautious about this case. Gorsuch tied protections to the Title VII, which is a law, and can be amended by a majority of a conservative Congress. I won’t be surprised when GOP candidates start running on a platform to amend Title VII. If that happens, this fight has to happen all over again.

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