Earlier this week, the Supreme Court re-wrote Title VII of the Civil Rights Act of 1964 by holding that sexual orientation and gender identity are included in the statute. 

The majority opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, claims to be using a textualist approach, yet its analysis and holding prove otherwise.

Justice Samuel Alito concisely opened his dissent with the summary: “There is only one word for what the Court has done today: legislation.” Justice Alito aptly compared this opinion to a pirate ship sailing under a textualist flag.

He went on to state, “Many will applaud today’s decision because they agree on policy grounds…. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not” (emphasis in the original).

Indeed, Justice Kavanaugh’s dissent seems to show sympathy for the policy outcome, yet he agreed that it is not within the Court’s constitutional boundaries to make this change.

Despite its improper analysis of other scenarios, the majority opinion properly makes reference to “an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent.” Yet it does not carry this analysis through in the cases at hand. The proper analysis is whether or not an employer would fire a female employee for homosexuality or identification as the opposite sex, but would not fire a male employee for homosexuality or identification as the opposite sex.

This wrong legal analysis leaves many questions unanswered. In seeming acknowledgement of the policy Pandora’s box it has opened, the majority opinion acknowledges the Religious Freedom Restoration Act and the Ministerial Exception, but only to say that how either would be impacted by the decision is not currently before the court—thus inviting litigation. The Religious Freedom Restoration Act is under attack in Congress, and the scope of the Ministerial Exception is currently under consideration before the Court, so these legal protections for religious freedom  provide little solace.

Justice Alito rightly points out that Congress has repeatedly refused to include sexual orientation or gender identity in Title VII or other federal civil rights statutes. Language to do so is included in the Equality Act and other bills which are introduced year after year without success. Yet, with its decision, the Court has essentially enacted the employment provisions of the Equality Act.

Sexual orientation and gender identity nondiscrimination laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous, or in the U.S. Constitution—unlike race and sex. In many situations, such laws pose a threat to religious liberty, which is protected by the Constitution. Not only that, but these laws pose a threat to women and, even those who identify as homosexual or transgender.

Justice Alito acknowledges numerous areas where the majority opinion could have serious implications:

  • Religious employers could face litigation and be compelled to “employ individuals whose conduct flouts the tenets of the organization’s faith [which] forces the group to communicate an objectionable message.”
  • Transgender identified individuals could be entitled to use the bathroom, locker room, etc. of their choice.
  • Women athletes could be forced to compete against athletes who are biologically male in both scholastic and professional sports.
  • Schools could be prevented from having sex-separated dormitories and housing.
  • Employers could be forced to cover treatments and surgeries that are not deemed medically necessary and, for religious employers, are in opposition to their faith tenets.
  • Freedom of speech, as it relates to both pronoun usage and employees’ ability to express their beliefs about marriage, family, and human sexuality, is now called into question.
  • The standard of review by which courts judge claims related to sexual orientation and gender identity discrimination could be upgraded to a stricter standard of review, like that used for sex discrimination.

Sadly, the Court has yet again usurped congressional power to achieve a desired policy goal which Congress has repeatedly refused to implement, and which is detrimental to society. 

With the Court’s invitation for litigation, the American Civil Liberties Union expects hundreds of cases to be filed.

Now, we wait to see how this will play out in future litigation and how Congress will respond to this judicial assault upon its constitutional prerogatives.

Mary Beth Waddell is Senior Legislative Assistant at Family Research Council. Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council.