What just happened?
In the case of Bostock v. Clayton County, Georgia, the Supreme Court ruled on Monday that employers who fire someone for being gay or transgender violate Title VII of the Civil Rights Act of 1964.
What was the case about?
The court was asked to decide in three cases considered together if the phrase “because of . . . sex” in Title VII of the Civil Rights Act of 1964 was meant to protect employees from discrimination because of sexual orientation, as well as whether the word “sex” meant “gender identity” and included “transgender status.”
In one case, Gerald Lynn Bostock is a homosexual man who was employed as the child welfare services coordinator for the Clayton County Juvenile Court System. He alleges his employer fired him after the county learned of his sexual orientation, of his participation in a gay recreational softball league, and of his promotion of volunteer opportunities with the county to league members. He also claims the county falsely accused him of mismanaging public funds as a pretext for terminating his employment because of his sexual orientation.
In another case, Thomas Rost, a devout Christian, runs a small, family owned funeral business. Rost hired Anthony Stephens as a funeral director in 2007. At the time, Stephens presented as a man. In a July 2013 letter, Stephens first told Rost that he identifies as female, that he “intend[ed] to have sex reassignment surgery,” and explained that “[t]he first step . . . is to live and work full-time as a woman for one year.” Stephens’s plan was to present as a woman and wear female attire at work. Rost told Stephens that the situation was “not going to work out,” but because he wanted to reach “a fair agreement,” he offered Stephens a severance package. Stephens declined the offer and filed a charge of discrimination with the EEOC in September 2013, alleging an unlawful discharge based on “sex and gender identity” in supposed violation of Title VII.
According to court documents, Rost believes the Bible’s teaching that sex is immutable and that he “would be violating God’s commands” if a male representative of Harris Homes presented himself as a woman while representing the company. Were he forced to violate his faith that way, Rost “would feel significant pressure to sell [the] business and give up [his] life’s calling of ministering to grieving people as a funeral home director and owner.” (The EEOC “does not contest [Rost’s] religious sincerity.”) The plaintiff in this case, Stephens, passed away last month from kidney failure.
How did the justices vote in this case?
The decision was 6-3, with Justices Gorsuch and Roberts joining the four liberal justices. Justice Gorsuch also wrote the majority’s opinion.
What is Title VII of the Civil Rights Act of 1964?
Title VII of the Civil Rights Act of 1964 is a federal law that states, “It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Nowhere in the statute does it say that “sex” is intended to include sexual orientation or gender identity. Congress has also repeatedly rejected any expansion of the term to include sexual orientation and gender identity in the Civil Rights Act.
What was the reasoning of the court’s majority?
The core of the court’s reasoning is found in this paragraph of Gorsuch’s opinion:
An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.
What was the argument for the dissenting justices?
Justice Alito (joined by Justice Thomas) wrote in his dissent:
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.” 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.
In a separate dissent, Justice Kavanaugh complained that the court was rewriting the law:
If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty.
[. . .]
[T]he implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.
How will this ruling affect religious employers, such as churches and ministries?
That question remains unclear since the court says it was not asked to consider a religious liberty claim. In his opinion, Justice Gorsuch says:
[T]he employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3.
But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
Why should Christians care about the outcome of these cases?
There are at least three reasons Christians should be concerned about this court ruling that the term “sex” covers gender identity and sexual orientation.
First, it will allow federal agencies to redefine reality. In 1984, the landmark Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. established the standard known as “Chevron deference.” Because of Chevron deference the executive branch, through the various regulatory agencies (such as the EEOC), provides most interpretation of statutes passed by Congress (such as Title VII). When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place. Because the judiciary branch has established the Chevron deference, any interpretation deemed “reasonable” is likely to be the standard that is used. If the court deems it reasonable to use “sex” as synonymous with transgenderism and homosexuality, federal agencies will be able to override the will of the American people on these issues.
Second, it will further undermine religious freedom. As the Harris Funeral Homes case shows, Christian-owned businesses can be required to hire and accommodate transgender persons even for roles in which it would violate their employer’s moral and religious beliefs (e.g., such as hiring a man who identifies as a women to work in areas where girls and women undress).
Third, as Alliance Defending Freedom notes, it will undermine equal treatment for women by, for example, allowing women’s scholarships to be given to men who believe themselves to be women. It would also jeopardize the dignity and privacy of women, forcing organizations to open women’s shelters, locker rooms, and restrooms to men who believe themselves to be women.
Justice Alito acknowledges this concern, saying:
Under the Court’s decision, however, transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes over time. Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.
The ramifications will be significant, for as Justice Alito adds, “[T]he 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.”