Alito And Thomas: In Bostock The Majority Is Sailing An Arrogant Pirate Ship

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” …Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses.

…Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should “up- date” old statutes so that they better reflect the current val- ues of society. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing….

…Title VII, as noted, prohibits discrimination “because of . . . sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear could be that this meant discrimination because of the ge- netic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.” Ante, at 2. (Appendix A, infra, to this opinion includes the full definitions of “sex” in the unabridged dictionaries in use in the 1960s.)

In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also American Heritage Dictionary 1187 (def. 1(a)) (1969) (“The property or quality by which organisms are classified according to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (1966) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”).

The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant definition. Ante, at 5. (I address alternative definitions below. See Part I–B–3, infra.) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.” Ante, at 5.

If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.

…The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means.

…The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. Ante, at 19 (“homosexuality and transgender status are distinct concepts from sex”). And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. See ante, at 10 (recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes. And individuals who are born with the genes and organs of either biological sex may identify with a different gender.

…What the Court has done today—interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity—is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. See Appendix C, infra; e.g., 20 U. S. C. §1681(a) (Title IX); 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Opportunity Act). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante, at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s.

…As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.

…“[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a con- fined and sensitive location such as a bathroom or locker room can cause serious psychological harm.

A similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance. In 2016, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination,47 and some lower court decisions have agreed….

Women’s sports. Another issue that may come up under both Title VII and Title IX is the right of a transgender in- dividual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex.

..Employment by religious organizations. Briefs filed by a wide range of religious groups—Christian, Jewish, and Muslim—express deep concern that the position now adopted by the Court “will trigger open conflict with faith based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” They argue that “[r]eligious organizations need employees who actually live the faith,” and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.

…This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may under- mine the school’s “moral teaching.” Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relation- ship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.

Freedom of speech. The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories. Some jurisdictions, such as New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense,59 and some colleges have similar rules.60 After today’s deci- sion, plaintiffs may claim that the failure to use their pre- ferred pronoun violates one of the federal laws prohibiting sex discrimination….

The Court’s decision may also pressure employers to sup- press any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.

JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting. Bostock v. Clayton County, GA, June 15, 2020.

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5 comments

  1. This decision effectively renders moot any attempts by churches attempting to discipline or remove an employee or clergyman from office because of their sexual deviancy – think TE Johnson of the PCA. It would also, I believe, prohibit churches from having provisions in their bylaws and hiring policies prohibiting sexual deviancy. It might even prohibit the asking about one’s sexual proclivities when hiring. Lastly, it may not even allow a church to disqualify an employed minister who later changes his or hers or it’s mind about its sexual identity and desire, even if such a change violates the Confessional standard they took a oath on originally. After all, how can an employee be disciplined or terminated based on violating an oath that is in fact illegal. Incorporated Churches, and large denominations will be at greatest risk. But most, like the PCA, are excited about these changes as evidence by their recent “expert” study.

  2. Thank you for calling out rule by statute, which is exactly what appears to have happened in Oregon with the opinions of Chris L. Garett and Thomas A. Balmer, sitting justices in thIs states’ ‘highest court’. The precedent of elevating statues above the Constitution, then setting the Constitution aside by people elected and sworn to uphold the Constitution has been uncovered. These elected people include governors, legislators, judges, city counsels, mayors, etc. I had not realized the depleted state of our thinking about Liberty and Freedom until I read the opinions of these men sitting as justices. I saw the history of governance by statute clearly, almost boastfully outlined and defended.

    It’s clear to me I have not been a Christian citizen other than voting and complaining. Now I understand what results from my indifference, ignorance, and complacency regarding the freedoms and liberty derived from knowing and protecting the Constitution.

    Fortunately, I know I am an exiled sojourner, I have been set free from the tyranny of the devil, my sins are forgiven, and Christ’s righteousness has been imputed to me.

    What is the work of being a Christian citizen? How do I engage people in a dialogue about freedom that results in liberty and the capacity to consider others better than myself?

  3. The fact that SCOTUS is “legislating” is due to the vacuum created by the house & senate, the appropriate place for the creation of laws by definition of the Constitution. The failure of congress to act in matters like this has to do with their partisan influences, divided more or less along party lines (though not entirely!).

    Having worked in the telecom industry for nearly 35 years (from 1971 to 2005) I witnessed similar ineptitude on the part of appropriate congressional sub-committees to produce legislation to control the then monolithic AT&T Long Lines, hence the entrance of a circuit court judge in DC (Greene) who forced the break-up of the AT&T “monopoly.” It was entirely unnecessary and resulted in a multitude of corrupt “cream skimmers” who brought cheap services and products to the public, many of which were of substandard quality and incorrectly billed to customers. Consider Bernie Ebers, Gary Winnick, John Rigas, etc. who profited from the inept duty of Congress to falsely report earnings and losses and all of whom are either in jail or have served time.

    In this case, it’s a combination of corrupt influences as well as fear about voter backlash that caused our dear legislators to run for pocket lining cover. May they be shamed (but of course they won’t be).

  4. Six justices trying to tell us that a eunuch in female dress is truly a “woman” simply because he thinks he is is arrogance on the order of the earth receiving papal permission to move.

    X and Y–
    They don’t lie,
    Though Justices try
    to deny.

  5. This decision is from the same school of thought (I use that term sarcastically) that advocates for a “living Constitution”. And it is equally debased and wrong.

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