Left-Wing Court v Right-Wing Government?: US Supreme Court decision is described by Donald Trump as a “shotgun blast into the face”

July 10, 2020

3 min read

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What's going on here?

The Supreme Court of the United States (SCOTUS) ruled in Bostock v. Clayton County [2020] that the language of the Civil Rights Act of 1964, which prohibits discrimination on the basis of “sex”, includes discrimination based on sexual orientation and gender identity.

What does this mean?

Many believed that the SCOTUS’ judgment would echo the federal government’s diminishing of gay and transgender rights, notably the ban on most transgender people from serving in the military and the undoing of protection against discrimination for transgender patients. 

However, the SCOTUS considered three cases, the first two of which concerned lawsuits from gay men who alleged that they had been dismissed because of their sexual orientation, and the third from a transgender woman. Now, the consolidated decision in Bostock v. Clayton County [2020] allows those who have been discriminated against in the workplace based on their sexual orientation or gender identity to file lawsuits against their employer

Because the justices used the subtly different approaches of textualism and originalism when determining whether the prohibition “based on (…) sex” in Title VII of the Civil Rights Act of 1964 applied to gay and transgender workers, the judgment has been subject to criticism. Justice Samuel A. Alito Jr. dissented, finding that the court had abandoned its judicial role and “brazenly” abused its authority.

What's the big picture effect?

Justice Alito provided two main reasons for his dissenting argument. Firstly, the SCOTUS’ ruling could not have applied the original meaning of the legislators, as discrimination based on sexual orientation or gender identity would have “clashed with (1964) societal norms”. This is known as an originalist approach (i.e. an interpretation of the words using definitions at the time of the words being written). Secondly, the SCOTUS ignored a bill in the Senate which sought to clarify Title VII, meaning the SCOTUS overstepped its judicial role to extend Title VII’s definition “under the guise of statutory interpretation”. 

Writing the majority opinion, Justice Neil Gorsuch retorted with a textualised approach (i.e. an interpretation based on how the words are actually written), by finding that but for an employees’ sex, they would not have been dismissed. For example, where a male and female employee share an attraction to men, only the man would be fired. Similarly, when two employees identify as female, only the one identified as male at birth would be fired.

Even before this decision most companies already had policies prohibiting discrimination based on sexual orientation or gender identity. One cynical reason for this could be the negative reputational impact not doing so would have. For example, in 2014, Saks Fifth Avenue (a US luxury department store chain) filed a motion to dismiss a lawsuit brought by a recently harassed and fired transgender employee. But following pressure from civil rights groups the motion to dismiss was withdrawn and an amicable resolution was reached. It may well be that even before the SCOTUS came to this decision, companies were already being held to the court of public opinion. This most recent judgment, however, at least enshrines these rights in law.

Donald Trump’s vivid description of the judgment is likely because his presidency had nominated Justice Gorsuch in the hope that he would be a conservative anchor within the SCOTUS, something this decision seems to contradict. However, because the majority opinion utilised a highly literal interpretive theory, it in no way indicates whether the SCOTUS will be so progressive in future matters. Furthermore, as Justice Gorsuch provided a very narrow decision which did not engage constitutional rights (unlike previous landmark rulings such as Obergefell v. Hodges [2015], which legalised same-sex marriage), Congress could introduce a bill which reverses the Bostock v. Clayton County [2020]decision. Alternatively (and hopefully), the Senate’s aforementioned review of Title VII, alongside Bostock v. Clayton County [2020], could usher in a new era for LGBTQ+ rights. This won’t be the last battle.

Report written by Keir Galloway Throssell

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