Bostock v. Clayton County: Title VII and LGBTQ+ Rights

Case Background and Facts

In Bostock v. Clayton County, the U.S. Supreme Court considered whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation or gender identity. The case originated in a lawsuit by Bostock, who claimed that he was unlawfully fired from his job in Georgia after promoting a gay softball club. At the time, Georgia had no law protecting workers' rights based on sexual orientation. Bostock claimed his Title VII rights under the Civil Rights Act were violated by his employer, which did not approve of his sexual orientation. The District Court of Georgia ruled against Bostock, holding that Title VII did not protect against discrimination based on sexual orientation, but only against discrimination based on sex.¹ Bostock appealed the decision, which eventually reached the Supreme Court. Justice Gorsuch wrote the majority opinion ruling in favor of Bostock, concluding that Title VII did indeed protect against discrimination based on sexual orientation.

The Supreme Court's Decision

The Court ultimately ruled that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination, and therefore covered by Title VII. The ruling was a major victory for LGBTQ+ rights and helped ensure that employees would be protected from discrimination regardless of their sexual orientation or gender identity. However, the ruling also left some questions unanswered, such as whether Title VII protects against discrimination based on transgender status. Nevertheless, the ruling was a landmark moment for LGBTQ+ equality and helped ensure that all employees would be treated fairly under the law.

Justices Alito, Thomas, and Kavanaugh produced dissenting opinions, arguing that the decision amounted to legislation and constituted an abuse of the principle of separation of powers. In their view, reading "sexual orientation" into Title VII of the Civil Rights Act was not lawful and could not be reconciled with the legislation as passed in 1964. For Bostock's case to have merit, they argued, legislators would have had to draft new legislation explicitly protecting workers from discrimination based on sexual orientation. That had not been done, and no such protection could be found in Title VII. This was the central argument of the dissenting justices.²

Textualism vs. Purposivism: The Interpretive Debate

The dissenting justices have a point in their view, although Gorsuch was praised by some as adopting a textualist approach.³ The textualist approach to judicial interpretation holds that the best way to read a legal text is to look at the plain meaning of the words used. This approach rests on the belief that the drafters of a legal text choose their words carefully and that, as a result, the meaning of the text should be discernible from those words alone. Textualism is often contrasted with the purposivist approach, which holds that a legal text should be interpreted in light of the purpose or intention of its drafters. Textualists also tend to reject the use of extrinsic evidence, such as legislative history, when interpreting a legal text, maintaining instead that meaning can and should be determined without reference to external sources. Proponents of textualism argue that it is more objective than other approaches and that it produces greater certainty in the law. The fact of the matter is, however, that Alito, Thomas, and Kavanaugh were the truer textualists in this case, while Gorsuch was acting more in the purposivist tradition.

In his opinion, Gorsuch focused on how the Court could base its interpretation of "sex" in Title VII on precedent established by earlier cases. His argument was that "sex" could be understood to encompass all aspects of sex, including orientation. Yet, as Blackman points out, "In Bostock, Justice Gorsuch quietly accepted precedent that paid little attention to text."⁴ In other words, those precedent cases were not focused on the text itself — which, as Alito and his fellow dissenters noted, contained no reference to orientation. Gorsuch was drawing on modern understandings of discrimination and contemporary social acceptance of homosexuality rather than the plain text of the 1964 legislation. That is why the dissenting justices argued that the majority opinion represented an abuse of judicial power: it effectively affirmed a new legal protection — the right against discrimination based on sexual orientation — that had not previously existed in statute.

Conclusion

The Bostock case demonstrated that the Court was willing to interpret Title VII broadly enough to protect sexual orientation from employment discrimination. The dissenting justices maintained that Title VII does not actually provide such protection, and that if society desires it, the remedy lies with legislators rather than with the courts. Setting that debate aside, the practical reality is that HR departments will now be expected to operate with greater inclusivity. By fostering a more positive work environment, preventing workplace conflict, and building trust between employees and management, diversity and inclusion training can have a profound impact on an organization. The goal of HR management going forward will be to find ways to maintain balance among workers who hold opposing beliefs. This will not be easy as society becomes increasingly polarized. Nevertheless, it is hoped and expected that, by taking deliberate steps toward inclusion, HR management can help create a workplace where everyone feels respected and valued.

Bibliography

Blackman, Josh. "Justice Gorsuch's Legal Philosophy Has a Precedent Problem." The Atlantic. https://www.theatlantic.com/ideas/archive/2020/07/justice-gorsuch-textualism/614461/

Court of Appeals. https://media.ca11.uscourts.gov/opinions/unpub/files/201713801.pdf

Gerstein, Josh, and Rebecca Rainey. "With LGBT Ruling, Supreme Court Hands Liberals a Surprise Victory." Politico.