Bostock v. Clayton County as Differently Understood

This is a case in which the Civil Rights Act of 1964, Title VII dealing with employment matters is the relevant law, which is:  “Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

Bostock is one of three suits consolidated by the Supreme Court to be decided together because they all present the same basis for decision.  In each case an employee was fired after disclosing their homosexuality in two suits and transgender identity in the third.  Employers do not dispute they fired employees for being homosexual or transgender.  Employers contend that Title VII does not address homosexual or transgender status as a basis for Title VII liability; only “sex” is stated in the statute. Employers reach their conclusion on the basis that the word “sex” in Title VII means male and female; there is no other choice.  Employers gave no preference to persons of the other sex; there was no disparate treatment of men and women.  Neither males nor females were subject to a double-standard in favor of either sex.  On the basis of the foregoing, the circuit courts in each of ten circuits came to the same conclusion and dismissed the individual cases in each circuit.  

The Supreme Court took a different basis for its decision.  The Court states, “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.  Title VII’s message is simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins.   Simply put, if an employer makes LGBTQ status a basis for employment related decisions, that is discriminatory and thus a violation of Title VII. Since every employee has a “sex” it is only sex-related matters that bring Title VII into play.  A female employee fired for being tardy or incompetent is fired for that reason solely, and if a man had the same deficiencies would also be fired then Title VII stands silent.  

Unquestionably, the 6-3 decision of the Justices was unexpected.  Even Justice Ginsburg, who was a judge of the Second Circuit Court of Appeals, was among those supporting employer’s interpretation off Title VII, but was a member of the majority in the Supreme Court decision. I read Justice Gorsuch’s opinion and to me it logically explicates the meaning of Title VII.  Justice Gorsuch expanded the scope of “sex” to include all of the LGBTQ categories.  Contrary to the way conservatives read male and female as the only existence of the meaning of “sex” in 1964, it is apparent to me LGBTQ existed in 1964, but was not known Congress.  Except for LGBTQ people themselves, few others were aware of those gender categories. Justice Gorsuch is just the first Justice to state it.  Critics have to answer, what alternative is more appropriate? LGBTQ persons exist today, and if not included in “sex” how do they stand? These are gender categories under male and female.  Male and Female have LGBTQ categories at the next level.  They too are endowed by their Creator with certain unalienable Rights.  They are not a new sub-species of human being.  In the future it might be simpler for plaintiffs to sue on the basis of Constitutional rights having been denied.  Gorsuch had to use different reasoning for his opinion because he was bound by responding to the parties’ pleadings.  

The decision clearly requires additional statutory language from Congress.  Their reluctance so far has to change; their lack of leadership cannot go on indefinitely.  Congress needs to address a need for separating locker room and toilet facilities to maintain civil accommodation, and to correct athletic completion to be fair to all participants.                                                                                              June 23, 2020