“But you got dreams
He’ll never take away”
In Bostock v. Clayton County, the U.S. Supreme Court ruled today that firing employees because they are “homosexual or transgender” violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, the major federal employment discrimination statute. This is a position LGBT people have taken since shortly after the statute was enacted; it is a position long advocated by numerous legal scholars, including me. It is the interpretation of the statute that was prevailing among more recent lower court decisions, in contrast to older judicial opinions. By embracing what Justice Gorsuch, writing for the six-member majority including the more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor) and Chief Justice Roberts, considered the “ordinary public meaning” of the words of the statute when Congress passed it in 1964, the Court has assured that countless people in the U.S. have legal protection against anti-LGBT workplace discrimination, even in states that have not themselves enacted express bans on sexual orientation or gender identity discrimination.
The Court’s decision in Bostock also has potentially much broader application. Many other statutes prohibit sex discrimination. The Bostock decision is about one specific statute, Title VII, so it does not directly, immediately require that other statutes banning sex discrimination also reach sexual orientation and gender identity discrimination. But the reasoning in the majority opinion in Bostock could well lead the Supreme Court to that conclusion in further cases. If so, then it might well rule that the Trump administration’s attempt to roll back an Obama era regulation under the Affordable Care Act (ACA), which until Friday interpreted the ACA’s ban on sex discrimination to reach sexual orientation and gender identity discrimination, is contrary to the statute and legally void.
In addition, the constitutional guarantee of equal protection of the laws has been implemented by judicial doctrine giving government more or less deference when courts review different forms of government discrimination. Age discrimination is upheld unless the reviewing court concludes the plaintiff showed the government lacked a rational basis for its action; rational basis review is a very easy standard for the government to meet. But sex discrimination gets less deference, with courts supposed to uphold it only if the government discrimination proves that its action survives a form of heightened review often called intermediate scrutiny. It’s not enough there to have a rational basis; the discrimination must serve not just a legitimate purpose but one the courts will judge “important,” and the sex discrimination cannot just be loosely connected to the purpose in any “rational” way; rather, the discrimination must be “substantially related” to the discrimination. This is a much more demanding standard, one difficult for government actors to meet. Although Bostock was grounded in the meaning of a statutory text that proscribes “discrimination” “because of” “sex,” it would not be a stretch to see the Supreme Court rule that the Bostock reasoning shows that the constitutional concept of sex discrimination embraces sexual orientation and gender identity discrimination. This would then extend protection against governmental discrimination under the Constitution even where statutes don’t reach. That could have enormous benefit for LGBT people in a variety of contexts, including the federal government’s transgender military service ban.
