The Christian Legal Centre’s Roger Kiska comments on the US Supreme Court’s recent ruling on sexual orientation and transgenderism.
On 15 June, the United States Supreme Court stunned many by delivering a landmark anti-discrimination ruling in the case of Bostock v. Clayton County, Georgia, literally legislating into Title VII of the Civil Rights Act of 1964 the concepts of sexual orientation and transgender status. What has shocked most legal analysists is that the judgment happened because of the votes of two of the court’s conservative judges, Chief Justice John Roberts and Associate Justice Niel Gorsuch, the latter of which drafted the opinion for the majority. Gorsuch began his term in April 2017, after being nominated by President Donald Trump to replace the then recently-deceased Antonin Scalia.
Title VII: Sex Discrimination
The provision in question, SEC. 2000e-2 [Section 703] reads in pertinent part:
“(a) it shall be an unlawful employment practice for an employer -(1) to fail or refuse to hire or to discharge any individual, or otherwise 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…”
What is immediately apparent, even for those who have not spent a single day in law school, it that the terms sexual orientation and transgenderism do not appear anywhere in the text.
Justice Gorsuch, before imputing new terms to the statute which Congress has itself refused to do on a great many occasions, writes a disclaimer into the judgment condemning the exact practice he is about to engage in:
“This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.”
The majority decision then proceeds to suggest that the term ‘sex’ in the statute is inclusive of sexual orientation and transgender status. In one of the penultimate statements in the judgment, Justice Gorsuch writes:
“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
To be clear, if it wasn’t already clear enough from a plain reading of the text itself, sex is not synonymous with sexual orientation or transgender status; nor is it indissociable from them. Gorsuch himself admits in the judgment: “We agree that homosexuality and transgender status are distinct concepts from sex.”
The courts are not the legislature
Among the many flaws in his reasoning, I think it important to expose four of them. First, he rejects the argument that had Congress wanted to add protections for sexual orientation and transgender status, it would have done so. He goes so far as to suggest that there is no authoritative way to know why Congress chose not to add these terms into the Statute, even though it had in other statutes and refused to do so on numerous occasions in relation to Title VII. He then makes the unsustainable claim that perhaps some legislators already knew that the “broad language” of sex discrimination would include sexual orientation and transgenderism.
The legal phrase res ipsa loquitur comes to mind, which literally translates as “the thing speaks for itself.” The Employment Non-Discrimination Act [ENDA], which proposed to do the same thing as Justice Gorsuch did with a proverbial sweep of his pen, has literally been introduced into every congress but one since 1994, and been rejected each and every time. From 2015, the Democrats have also tried to pass the Equality Act, which would go further that ENDA by also including sexual orientation and transgender identity into housing, public accommodations, public education, federal funding, credit and jury service, in addition to employment. It too has failed. There has been a very public debate about both laws and why they were not passed. It is frankly baffling that Justice Gorsuch would be so intellectually dishonest about the why each of those attempts failed.
Legal sophistry
Second, the majority decision suggests that there is no need to look at legislative history to discover that the term sex must also include sexual orientation and transgenderism. Looking at legislative history is an analytical process seeking to determine what the original legislators actually intended to protect when they drafted the language in the first place. Here again, the majority engages in sophistry so blatant that it would make Protagoras himself blush. Justice Gorsuch suggests that appealing to legislative history applies only where ambiguity as to the plain meaning of a term exists. He suggests that no ambiguity whatsoever exists, arguing that it is self-evident that the term sex also includes sexual orientation and transgenderism. Perhaps Mr Gorsuch should open up a dictionary to see that this position is not nearly as self-evident as he believes it to be.
Comparative jurisprudence
Third, a comparative legal analysis clearly evidences that sexual orientation and transgender status are not the same as sex. America’s neighbour to the North, when enacting its signature piece of federal anti-discrimination legislation, the Canadian Human Rights Act, drafted separate protected categories for both sexual orientation and gender identity, apart from sex. Similarly, in the United Kingdom, gender reassignment and sexual orientation are protected separately from sex in the Equality Act 2010. Under European Court of Human Rights Jurisprudence, sexual orientation and gender identity are also clearly separated from the protected characteristic of sex. Whereas sex is clearly enumerated in Article 14 of the Convention (prohibition against discrimination), the Courts have always placed gender identity and sexual orientation within the category of “other status”, a catchall phrase used at the end of Article 14. The EU’s employment anti-discrimination law, likewise clearly enumerates sexual orientation apart from sex. It was the Court of Justice, and not the Commission or Council, which later categorised gender reassignment to be included within the meaning of sex in EU law. Perhaps Gorsuch took his activist cue from the EU court in coming to his reasoning in Bostick.
Religious and moral freedom
Lastly, the majority tries to distance itself from the consequences of its ruling by suggesting that their ruling has no bearing on the question of religious freedom, sex segregated bathrooms, dress codes and locker rooms by suggesting that none of those laws were currently before them and are yet subject to adversarial testing. Gorsuch then points to the fact that exemptions have been carved into Title VII for religious organisation and that further protection for religious freedom exists in the form of the Religious Freedom Restoration Act 1993, which he fails to mention was ruled to be unconstitutional in relation to enforcement against individual states in the case of City of Boerne v. Flores.
A recently published book on precisely these issues, ‘Equality and Non-Discrimination: Catholic Roots, Current Challenges,’ edited by Jane F. Adolphe, Robert L. Fastiggi and Michael A. Vacca, provides some truly invaluable insights about extending sexual orientation and gender identity into anti-discrimination law. In the book, Ryan T. Anderson argues that the creation of new LGBT protections gives immense amounts of privileges to a few, while doing immense damage to the fundamental liberties of many. SOGI laws, he argues, diminish religious freedom, freedom of speech, freedom of conscience and education rights while only giving out limited exemptions to religious organisations in return. In a later chapter of the book, Monsignor Piotr Mazurkiewicz’s poignantly argues that giving churches exemptions is not the solution because at a minimum, this gives the public appearance that churches are state sanctioned discriminators. Not only does this appearance damage the public perception of churches and doctrine, but it will lead eventually to those exemptions being taken away.
Culture follows the law
More than this however, what the Supreme Court has essentially done has been to create virtues of both sexual orientation and transgenderism. Culture follows law. Acts discriminating against someone on the basis of sexual orientation or gender identity, whether based on a Christian conviction or not, may in short order be viewed by culture as being as heinous as racism or sexism.
Furthermore, by unconditionally accepting, for example, that one of the claimants who was biologically a male was now in fact a female, the Court may have unwittingly ushered in the pandoras box that comes with such an assumption. Moral opposition to transgenderism in the workplace, the failure to use that person’s desired pronouns and even rules about sex segregation of bathrooms and changing facilities can now all lead to charges of a hostile work environment.
The Bostick ruling also comes days after the Trump Administration finalised a Health and Human Services Department regulation essentially saying that gender identity is not a protected characteristic in relation to sex discrimination in health care. The new rule defines gender as being synonymous with an individual’s biological sex. While Bostick does not directly address this issue, as it deals exclusively with employment and not health care, a big question mark arises as to how, if the new rules are legally challenged, the courts would address Trump’s new regulations given the majority’s ruling in Bostick. If nothing else, Monday’s ruling muddies the legal waters much more than it provides any sense of clarity to these very serious jurisprudential questions.
The establishment of a ‘judiciocracy’
The issues involved with gender identity and sexual orientation, and the disputes that arise from them, are very real, volatile and far reaching. Reasonable minds differ about these things. Congress’ refusal to pass ENDA and the Equality Act despite countless attempts to introduce them are proof that this is the case. What we saw from the Supreme Court this past week was the establishment of a judiciocracy, where 5 people can legislate from the bench of behalf of 328 million Americans, despite Congress’ crystal clear rejection of those very principles. Even if you are among those celebrating the Bostick decision, a time may very well come when a group of 5 decide to fundamentally affect your rights and beliefs you hold near and dear.
Monday’s ruling evidenced the worst form of judicial paternalism. In the end, Lewis Carroll’s Humpty Dumpty appears to have been absolutely correct when he said: “when I use a word…it means just what I choose it to mean—neither more nor less.” So too, when the Supreme Court says sex means sexual orientation and transgender status, it appears to be so. For as Humpty Dumpty then explains to Alice who queries him as to how he can make words mean so many different things, “The question is which is to be the master-that’s all.”
