On Textualism: Bostock v. Clayton County

Last week, Justice Gorsuch held that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation or gender identity. To some it was gold leaf, a vindication of the decades-long fight for gay and transgender rights. To others it was blasphemy, an abdication of the constitutional duty of a judge. But leaving politics aside, it highlights a debate over one of the central theories of statutory interpretation: textualism. Both Gorsuch in the majority and Alito in dissent claim textualism is on their side. The fact that they come to dueling interpretations of a one-sentence statute suggests that textualism will yield unpredictable outcomes in statutory interpretation cases for years to come, irrespective of the typical “conservative” and “liberal” labels given to each of the Justices. Here is my analysis of Bostock v. Clayton County.


Introduction

In Justice Gorsuch’s recent book, A Republic, If You Can Keep It, he explains his view on how judges ought to go about discerning the meaning of laws. It’s called textualism. “When interpreting statutes,” he writes, textualism “tasks judges with discerning (only) what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment” (p. 131). Textualism sets out a specific framework: A judge reads a statute, uses dictionary definitions at the time of the statute’s adoption to define its terms, relies on basic rules of English grammar to link those terms together, and then applies the resulting interpretation to the facts of the case. Textualism is contrasted with “purposivism,” discerning a statute’s meaning by looking primarily at Congress’ intent in passing the law and the history of the law’s drafting; and “consequentialism,” choosing the reading that would result in the best possible social consequences.

Title VII of the 1964 Civil Rights Act prohibits public employers from discriminating against any of their employees “because of [an employee’s] . . . sex” (42 U.S.C. §2000e–2(a)(1)). Thus, no employer can fire, refuse to hire, or make any adverse employment decision against an employee “because of” that employee’s “sex.” Bostock v. Clayton County involves discrimination on the basis of sexual orientation and gender identity. If an employer fires or refuses to hire an employee because the employee is gay, lesbian, or otherwise; or because the employee is transgender, has the employer violated Title VII?

Justice Neil Gorsuch wrote the Court’s majority opinion in Bostock. His answer was “yes.” When an employer fires an employee because he/she is gay or because he/she is transgender, the employer necessarily discriminates against the employee because of his/her sex and therefore violates Title VII.

In dissent, Justice Samuel Alito branded Gorsuch’s opinion a “pirate ship.” It “sails under a textualist flag,” but it’s really nothing more than an “update” to Title VII so that it “better reflect[s] the current values of society,” he wrote. Alito seems to be quoting Gorsuch to Gorsuch. In his book, Gorsuch objects to this very theory of statutory interpretation, according to which judges should “update statutes when they grow out of touch with the legal topography” (p. 134).

How then does Gorsuch justify his conclusion? Mind you, the terms “sexual orientation” and “gender identity” nowhere appear in the text of Title VII. And how can he dodge Alito’s scathing criticism? After all, it does seem like Gorsuch has walked back his argument for textualism. To answer these questions, we must study the two’s opinions.

I’m willing to bet that most people across the country did not read all 172 pages of the opinions in Bostock, much less fully comprehend them. They saw the headlines. They read the media coverage. Perhaps they saw snippets of the opinions’ conclusions, the golden nuggets within the sprawling 172-page expanse. And upon this foundation, they built their opinions. In reality, this isn’t unacceptable. Most of us do not have time to read 172 pages of legal reasoning—let alone try to fully comprehend them.

But those pages tell of a rich debate—one over textualism, the role of the Court, and the values we hold in our society today. Those pages suggest that, in the long run, interpreting statutes will not yield predictable outcomes at the Court.

Gorsuch’s Majority Opinion

Title VII

Read for yourself the relevant part of Title VII:

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s . . . sex.

Now ask yourself the following question: Does an employer who discriminates against an employee because of that employee’s sexual orientation or gender identity violate Title VII? To answer that question, we must understand what Title VII says. To do that, we have to analyze its text.

Some might object already. To understand what a statute says, they say, we shouldn’t look to its text. Instead, we should look to its legislative history, what the members of Congress said while writing the statute, etc. This will tell us what Congress’ intent was and what the law’s purpose is. This theory of statutory interpretation is called “purposivism.” But purposivism has some fundamental problems. First, judges run a high risk of misinterpreting Congress’ intent (and, by extension, the law). Think how easy it would be to misunderstand the reason that a statute, as a bill, changed from one version to the next. Or how easy it would be to misunderstand the meaning of a Congressmember’s impromptu floor speech, based on nothing more than a reading of the transcript. Second, purposivism flees from the very text of what we say is “law.” Shouldn’t the meaning of a law be exactly what it says? After all, we hope Congress means what it writes in a law. For textualists, purposivism is a last resort. Only if the text of a law is ambiguous should a judge revert to legislative purpose.

Textualism is the way to go, then, and Gorsuch properly begins his opinion with it. Title VII must be interpreted “in accord with the ordinary public meaning of its terms at the time of its enactment,” he writes. So, we must define Title VII’s terms and discern its meaning as if we were in 1964, in the mind and with the lexicon of the legislators who wrote it.

Most of the statute is self-explanatory. The first few clauses deal with adverse employment decisions. So, we know that a firing or a refusal to hire are necessary conditions to invoke Title VII. “Discrimination,” a broader term, also qualifies. In 1964, discrimination meant “treating [an] individual worse than others who are similarly situated,” Gorsuch explains.

Next, we also know whom Title VII is meant to protect: the employee. The employer cannot make an adverse employment decision against the “individual” (that is, the employee). So, an employee who suffers an adverse employment decision is necessary to invoke Title VII.

Now comes the most important five words: “because of such individual’s . . . sex.” Gorsuch sees two issues here: how is “sex” defined, and what does the causal operator “because of” do to the meaning of the statute?

Let’s start with the definition of “sex.” How was “sex” ordinarily defined in 1964? That’s an easy question. Everyone in this case—Gorsuch, Alito, and the parties involved—agree that “sex” meant one’s “status as either male or female [as] determined by reproductive biology.” Whether in dictionaries or in common parlance, “sex” 56 years ago referred to a binary, biological human trait. Thus, we can add one’s status of biologically male or female to the list of necessary conditions to invoke Title VII.

At last comes the crucial conjunction: An employer cannot make an adverse employment decision against an employee “because of” that employee’s sex. What does “because of” mean? To Gorsuch, it means that whenever an employer discriminates against an employee “on account of,” or “on the basis of,” or “by reason of” that employee’s sex, the employer violates Title VII. This incorporates “but-for” causation. In other words, but for the employee’s sex, the employer would have made a different employment decision. To explain, let’s use another Title VII-prohibited ground of discrimination: religion. Suppose John is Catholic, and John’s boss fires him because he’s Catholic. John’s boss would not have fired him if it weren’t for the fact that John was Catholic. Here, John’s Catholicism is a but-for cause of his firing, and his employer therefore violates Title VII. So, back to sex, if an employer would have treated an employee the same as any other but for that employee’s sex, the employer violates Title VII.

Thus, we know what Title VII says (then and now): Whenever an employee’s sex is a reason for an employer’s firing of, refusal to hire, or discrimination against that employee, the employer violates Title VII.

Sexual Orientation and Gender Identity

Now let’s pivot to sexual orientation and gender discrimination. Suppose an employer fires an employee because that employee is gay, or because that employee is transgender. Has the employer violated Title VII?

At first blush, the answer seems to be “no.” The reason for the employer’s decision was not the employee’s sex; it was the employee’s sexual orientation or gender identity, concepts that are wholly distinct from sex and therefore not covered by Title VII. (This is Alito’s argument.)

But Gorsuch disagrees. “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” he says.

That is a striking claim, and one which immediately seems wrong. Of course it’s possible to discriminate against an employee because of his/her sexual orientation or gender identity without also discriminating against the employee because of his/her sex. For example, suppose an employer has a policy stating that it will never hire or keep a homosexual or transgender employee, and that this policy applies regardless of sex. In other words, the employer refuses to employ gay men, lesbian women, transgender men, and transgender women; and will only employ straight men, straight women, cisgender men, and cisgender women. Doubtless, this employer discriminates on the basis of sexual orientation and gender identity. But the employer’s policy applies across the board; it does not discriminate on the basis of sex, since it applies equally to men and women.

But Gorsuch finds fault with this hypothetical. It works by treating men on the whole the same as women on the whole. The employer claims he hasn’t discriminated on the basis of sex because his policy treats groups of men and women the same. But “Title VII’s plain terms . . . don’t care if an employer treats men and women comparably as groups,” Gorsuch replies. Title VII deals with individuals. A judge must look at each homosexual or transgender employee the employer fired as an individual case, and ask whether the employer discriminated against that employee partly due to that employee’s sex. Title VII “makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation,” Gorsuch says. So the employer doesn’t escape Title VII simply by discriminating on the basis of sexual orientation or gender identity “regardless” of sex; he violates Title VII each time he discriminates on the basis of sexual orientation or gender identity.

Alright, fine. We have to put aside any hypothetical that attempts to distinguish sexual orientation or transgender discrimination from sex discrimination via equal treatment of men and women as groups. But surely we can think of a scenario in which this distinction holds for individual treatment, right? Suppose two people, Riley and Jordan, apply for a job. The application form contains a box that an applicant must check if they are homosexual or transgender. Suppose Jordan checks the box and Riley does not. Their employer then receives their applications by email and reviews them. The employer does not conduct interviews, relying only on the applications and the applicant’s resumes. Ultimately, the employer determines that both are equally qualified for the job. However, the employer would prefer a heterosexual (or cisgender) employee to a homosexual (or transgender) one. So, since Jordan checked the “homosexual or transgender” box, the employer hires Riley and not Jordan.

Any reasonable person would agree the employer discriminates against Jordan because Jordan is homosexual (or transgender). And the employer discriminates against Jordan as an individual, in this one particular case. But the employer has absolutely no knowledge of Jordan’s sex; the employer did not conduct any interviews, reviewed the applications without ever meeting the applicants, and Jordan even has a unisex name. Clearly, then, it is possible for an employer to discriminate on the basis of sexual orientation or gender identity in an individual case without also discriminating on the basis of sex.

Gorsuch gives two answers, but neither is especially convincing. First he offers a hypothetical of his own:

Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.

If this left you scratching your head, same here. Alito’s dissent agrees: “How this hypothetical proves the Court’s point is a mystery,” he writes. For starters, Gorsuch fights my hypothetical and alters it. But putting that aside, its conclusion simply does not invalidate my hypothetical. Under Gorsuch’s hypothetical, the employer discriminates against either black people, Catholics, or both. So yes, the employer sets out a rule of employment “turn[ing] on race or religion.” But either of those violates Title VII. My hypothetical sets out a rule of employment turning on sexual orientation (or gender identity), and does so as a means to rebut Gorsuch’s ultimate conclusion that such grounds for discrimination invoke Title VII liability. So, indeed, I am mystified by this response.

How about his other response?

There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words “homosexual” or “transgender” mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex. By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.

The first part of his response speaks to the applicant; the second part speaks to the employer. Alito offers an apt reply: “Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot reject an applicant based on homosexuality without knowing the applicant’s sex” (emphasis added). In other words, Title VII cares about whether the employer takes the applicant’s sex into account, not whether the applicant takes his/her own sex into account. So the entire first part of Gorsuch’s response is irrelevant. Gone too is the support for his conclusion (that the employer “intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex”).

At any rate, enough of my own objections. Let’s consider Gorsuch’s own arguments. He supplies his own hypotheticals to support his conclusion that, necessarily, an employer discriminates on the basis of sex whenever it discriminates on the basis of sexual orientation or gender identity. First, suppose an employer has two employees. Both are attracted to men. One, Jane, is a woman; the other, John, is a man. They are otherwise materially identical. Now, if the employer fires John simply because he is gay, the employer “discriminates against [John] for traits or actions it tolerates in” Jane, Gorsuch argues. Hence, sex necessarily played a role in the employer’s sexual orientation discrimination, and therefore the employer violates Title VII.

Underlying this argument is a crucial assumption. It is purely semantic, but crucial nonetheless. By saying John’s employer discriminates against him “for traits or actions it tolerates in” Jane, Gorsuch assumes that the particular “trait or action” in the employee is being attracted to men, not being attracted to the same sex. In the former sense, John (a man) is attracted to men; Jane (a woman) is attracted to men. So, yes, the employer discriminates against John for “traits or actions it tolerates in” Jane: being attracted to men. But consider it in the latter sense. Now, John (a man) is attracted to the same sex; Jane (a woman) is attracted to the same sex. The distinction no longer holds; the employer doesn’t discriminate against [John] for “traits or actions it tolerates in” Jane precisely because the employer would be as quick to fire Jane as it would John.

Lurking behind this semantic problem is another assumption made earlier in the argument. Gorsuch says that John and Jane are “materially identical” in all respects except the fact that John is male and Jane is female. In Alito’s mind, Gorsuch stacks the deck with this assumption. John and Jane “are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material”: their sexual orientation. So they really differ in two ways: their sex and their sexual orientation.

Gorsuch anticipates this objection. “When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play,” he acknowledges; “both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies)” (emphasis in original). How does Gorsuch respond? Well, rather weakly: “But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” Gorsuch simply restates his ultimate conclusion without rebutting Alito’s objection. True, Title VII’s “but-for” causation standard is satisfied when an employer discriminates in part because of sex. But this leaves untouched Alito’s objection that discrimination based on sexual orientation or gender identity does not necessarily involve discrimination based on sex. Alito would say that this employer discriminates on the basis of either sex, sexual orientation, or both. But Gorsuch has yet to show that the employer actually discriminates on the basis of sex (even in part).

What we have is a tussle over semantics. Gorsuch insists the male employee’s intolerable “trait or action” is attraction to men. So, with John and Jane (both of whom are attracted to men), Gorsuch says they differ in only one respect: their sex. Change just that one aspect and John no longer has to clean out his desk. Now he’d be a female attracted to men, just like Jane. Therefore, sex plays an inescapable role in the employer’s firing, even if it is primarily motivated by John’s sexual orientation.

Alito, on the other hand, insists the male employee’s intolerable “trait or action” is attraction to the same sex. So, with John and Jane (only one of whom is attracted to the same sex), Alito says they differ in two respects: their sex and their sexual orientation. Now an employer might say that he discriminates only on the basis of sexual orientation; he doesn’t care whether the person whose name is on the application sheet in front of him is male or female. All he cares about is whether that person checked the “homosexual or transgender” box. So if we change only the sexual orientation component and leave the “sex” component constant, the employer’s discrimination hinges entirely on sexual orientation without considering sex.

Objectively, this entire hypothetical ends in a dead-end. Both Gorsuch and Alito have valid interpretations. This leaves the reader to decide for him-/herself which interpretation is the better of the two. (Or, if you’re Alito, you say the text is ambiguous, at which point it is proper to revert to purposivism.)

Moving on, let’s consider the other hypothetical Gorsuch offers as support:

Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.

This, in my view, is a comparably stronger line of reasoning. Absent is the semantic distinction plaguing the previous hypothetical. Suppose the “model employee” is indeed a woman. Susan is her wife, so she would be sacked under the employer’s policy. Now suppose the model employee is actually a man; Susan is his wife, so he wouldn’t be sacked. Here, the woman is fired and the man is not. Hence the employer discriminates based on sex and violates Title VII.

Alito objects to this hypothetical too, although he does so by tinkering with it. Suppose two model employees arrive. One introduces the manager to Susan, the first employee’s wife; the other introduces Jim, the second employee’s husband. Will the two employees be fired? Again, it depends on whether the employees are men or women. There are four possible outcomes:

  1. The first employee is a woman, married to Susan, and lesbian.
  2. The first employee is a man, married to Susan, and heterosexual.
  3. The second employee is a man, married to Jim, and gay.
  4. The second employee is a woman, married to Jim, and heterosexual.

If (1) and (3) are true, both employees get the boot. If (2) and (4) are true, both employees keep their jobs. But either way, declares Alito, the man and the woman are treated equally; either both are fired or both show up to work the next day.

Again, this hypothetical leads to a dead-end. Gorsuch and Alito remain entrenched in their interpretations. Regarding Alito’s (amended) hypothetical, Gorsuch would say the employer doubly discriminates on the basis of sex, and therefore incurs twice the Title VII liability. Alito would say the employer doesn’t discriminate on the basis of sex at all, and therefore escapes Title VII liability.

Conclusion

After setting out his central reasoning, Gorsuch argues his interpretation of Title VII walks in stride with prior precedent, eliminating the need to overturn cases. And since, in his mind, Title VII unambiguously prohibits sexual orientation and gender identity discrimination, there is no need to grapple with contrary legislative intent.

He acknowledges that the 88th Congress never envisioned Title VII standing sentinel over sexual orientation and gender identity. But this is immaterial. “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about [Congressional] expectations,” he writes. “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

A passage that will live perpetually in the history of civil rights. Gorsuch’s opinion is not without its flaws. But, for many, those flaws are buried by the gravity of Bostock‘s holding: “An employer who fires an individual merely for being gay or transgender defies the law.”


The Dissents

Justice Alito

I have covered much of Justice Alito’s dissent already (which was joined by Justice Thomas). In short, his argument works like this: On the question whether Title VII’s text prohibits employment discrimination on the basis of sexual orientation and gender identity: either it unambiguously does, it unambiguously does not, or it’s ambiguous. The first option is wrong, since it isn’t necessary to take an employee’s sex into account while discriminating against that employee because of the employee’s sexual orientation or gender identity. The second option is right, because a plain textualist interpretation of Title VII says that discrimination “because of . . . sex” means discrimination because of the employee’s status as biologically male or female, since that was the ordinary meaning of “discrimination because of . . . sex” in 1964. Congress must amend the text of Title VII for it to extend to discrimination “because of” sexual orientation or gender identity. But even if the second option is wrong, the third option instructs judges to resort to purposivism. And all agree that purposivism falls squarely on Alito’s side.

He further speculates about the consequences of Gorsuch’s opinion. In Alito’s mind, it was legislation. Title VII meant one thing from 1964 till now, and it means something different from this point forward. Gorsuch therefore did Congress’ job for it. This is “irresponsible,” Alito asserts. “If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least some of them.” What are some situations in which those interests might compete? Alito has several in mind:

  • Transgender persons in bathrooms, locker rooms, and the like;
  • Transgender athletes and women’s sports;
  • Transgender students and college dorms;
  • LGBTQ employees and religious beliefs;
  • Sex reassignment surgery and healthcare coverage;
  • Required gender-neutral pronouns and free speech.

His conclusion is both carrot and stick. To Alito, Gorsuch was “no doubt” driven by “humane and generous impulses.” “Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.” There’s the carrot. Then comes the stick: “But the authority of this Court is limited to saying what the law is. The Court itself recognizes this: ‘The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.’ It is easy to utter such words. If only the Court would live by them.”

Justice Kavanaugh

The odd one out was freshman Justice Brett Kavanaugh. He penned a 27-page solo dissent. Rather than contend that Gorsuch bungled textualism (as Alito does), Kavanaugh argues Gorsuch was too literal. Kavanaugh distinguishes the “literal meaning” of a statute from the “ordinary meaning” of the statute. Citing the late Justice Antonin Scalia and several legal scholars, Kavanaugh explains the “ordinary meaning” principle:

The ‘prime directive in statutory interpretation is to apply the meaning that a reasonable reader would derive from the text of the law,’ so that ‘for hard cases as well as easy ones, the ordinary meaning (or the ‘everyday meaning’ or the ‘commonsense’ reading) of the relevant statutory text is the anchor for statutory interpretation’ (emphasis in original).

In other words, don’t read a statute too literally. Read it in its proper “social context.” Read it as if you were a “reasonable” person “conversant with the relevant social and linguistic conventions” of the time of the statute’s adoption. What you will find is the ordinary meaning of the law.

Kavanaugh adduces a few prior cases in which the Court rejected the literal meaning of a statute in favor of the ordinary meaning. In Robertson v. Salomon (1889), the Court held that beans are not “seeds” in commerce or in “common parlance,” even though they may be literal “seeds” to a “botan[ist] or natural histor[ian].” In Nix v. Hedden (1893), the Court explained that while tomatoes are literally “the fruit of the vine” (emphasis added), we ordinarily refer to them as vegetables. And in Andrus v. Charleston Stone Products Co. (1978), the Court rejected the idea that “water” could be included in a statutory definition of “mineral deposits.” Water (as ice) might literally be a “mineral,” but to read it as such would amount to “nothing more than an overly literal reading of a statute, without any regard for its context or history.”

These cases lay bare what Kavanaugh says is a fundamental principle of statutory interpretation: “When there is a divide between the literal meaning and the ordinary meaning, courts must follow the ordinary meaning.”

Turning to Bostock, it should be clear what Kavanaugh argues: Gorsuch flouted this principle because he relied on the literal meaning of “discrimination because of . . . sex,” not the ordinary meaning. Moreover, Gorsuch Balkanized the statute. He should have “heed[ed] the ordinary meaning of the phrase as a whole, not just the meaning of the words in the phrase,” Kavanaugh argues (emphasis in original). He explains with examples. Consider “American flag.” This could literally refer to a flag made in the United States, but it ordinary refers to the “Stars and Stripes.” Or, consider a “three-pointer.” This could literally refer to a field goal in football, but it ordinarily refers to “a shot from behind the arc in basketball.” Further, how about “cold war?” We understand the phrase as describing a geopolitical conflict that does not rise to the level of open warfare, or the specific instance of such conflict between the U.S. and the Soviet Union during the 1950s-80s. But it could literally refer to a war fought in winter, or in Siberia, or against penguins in Antarctica.

The point is, Gorsuch should have stuck to “the ordinary meaning of [the] phrase,” “discrmination because of . . . sex,” instead of the “[literal] meaning of words in the phrase,” Kavanaugh says. The ordinary meaning yields the “proper” conclusion: discrimination “because of . . . sex” is wholly distinct from discrimination because of sexual orientation or gender identity.

Holding otherwise doesn’t just eschew “Statutory Interpretation 101,” Kavanaugh continues; it also ignores the Judiciary’s role in our Constitutional republic. Over the years, dozens of bills have been proposed in Congress adding “sexual orientation” and “gender identity” to the list of impermissible grounds for workplace discrimination. Two are (or were) in Congress now, as Alito points out. And several states have added their own such protections for public employers within their borders. So “instead of a hard-earned victory won through the democratic process,” Kavanaugh chides, “today’s victory is brought about by judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law.” The Court is the “wrong body to change American law in that way.”

Kavanaugh concludes his dissent on a surprising note. Read it below in full:

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Kavanaugh recognizes the “powerful” policy arguments for LGBTQ and transgender rights, even though he disagrees with Gorsuch’s legal argument in Bostock.


Conclusion

At oral argument, Gorsuch said this case was “really close.” I imagine it’s because, upon first look, the textualist argument in Bostock seems to fall with the employers, but then Gorsuch began to see the textualist argument falling with the employees. Whatever the reason, Gorsuch, unbeknownst to us at the time, sent up a flare: Bostock is “really close.” Look how it ended up coming down.

It’s appropriate to close with another passage of Gorsuch’s recent book:

Obviously, there will be some close cases. And in those close cases we can expect that lawyers and judges of good faith will debate vigorously what the traditional tools of statutory interpretation suggest about a particular text’s meaning (p. 136).

Indeed. Gorsuch and Alito (and perhaps Kavanaugh too) debate vigorously the meaning of the phrase “discrimination because of . . . sex.” What its individual words mean, what its conjunction means, and what it means as a whole. Statutory interpretation cases are many and common at the Court. If there’s one thing Court-watchers will take away from Bostock, it is that the flame illuminating the textualism debate will not soon flicker out. And if there’s one thing the LGBTQ and transgender community will take away from Bostock, it is this: pride.


Photo Credits: The New York Times

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