On June 15, 2020, the Supreme Court in Bostick v. Clayton ruled that employers cannot fire an employees based on their sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. The majority opinion was authored by Justice Neil Gorsuch. While to many, it may seem surprising that Justice Gorsuch—a conservative and Trump appointee—joined the majority and authored the opinion, a closer look at the opinion’s reasoning shows that it fits squarely within Justice Gorsuch’s textualism approach to interpreting the law.
Justice Gorsuch grappled with the meaning of “discrimination based on sex” in the statute, instead of underscoring Title VII’s general underlying purpose of anti-discrimination, to reach his conclusion. The Court stated, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating … based on sex.” Gorsuch gave an example of one female and one male employee, both attracted to men. “If the employer fires the male employee for no reason other than the fact that he is attracted to men,” then the firing constitutes discrimination based on sex.
More, Justice Gorsuch alluded to potential caveats to the Court’s decision, including employers who may refuse to hire gay or trans workers based on religious objections. According to him, the Religious Freedom Restoration Act is a “super statute” that could allow for discriminatory hiring, after all.
Some of the Court’s subsequent decisions this term have upheld Justice Gorsuch’s not so subtle hint that religious liberty trumps protections against discriminatory conduct. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court ruled that under the “ministerial exception” under the First Amendment, Catholic school teacher are foreclosed from bringing employment discrimination claims. In Little Sisters of the Poor v. Pennsylvania, an employer with a “sincerely held religious or moral objection” to providing birth control coverage, including a publicly traded entity, may decline to cover employees’ contraception.
A deeper reading of Bostick and the decisions that followed prove that this Court still cannot be counted on to protect all citizens of the United States from discrimination. This realization should make the focus on passing protective legislation all the more imperative, at least for the time being.