On June 15, the United States Supreme Court released its opinion in Bostock v. Clayton County extending Title VII civil rights protection to sexual orientation. Most notably, the 172 page opinion centered entirely on the textualist understanding of “on the basis of sex,” with Justice Gorsuch writing for the majority and Justices Alito and Kavanaugh writing in dissent.
Textualism is a theory of statutory interpretation that uses the plain text of a statute to determine the meaning of legislation. It generally avoids looking to extrinsic sources like legislative history to interpret a statute, but does consider contemporaneous sources to determine the meaning of words when the legislation was enacted.
Bostock v. Clayton County involved three separate cases where the plaintiffs were fired for being either homosexual or transgender. The plaintiffs argued that their employers wrongly fired them “on the basis of sex” in violation of Title VII of the Civil Rights Act of 1964.
The question for the Supreme Court was whether “on the basis of sex” included sexual orientation and gender identity.
Writing for the majority, Justice Gorsuch (joined by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) concluded that a textualist reading of the statute found it did.
According to the majority, firing someone for their sexual orientation meant an employer fired someone for a behavior it would tolerate in one sex (attraction to a certain gender) but not in the other.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
So, the majority concluded, two employees being otherwise entirely equal except for their genders, firing one and not the other for having a wife would would discriminate on the basis of sex.
Accordingly, even if the original understanding of the word “sex” did not encompass homosexuals or transgenders:
“the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
Justices Alito, joined by Thomas, and Kavanaugh wrote in dissent, also applying the principles of textualism, but coming to a very different conclusion.
Justice Alito’s dissent focused on the reach and original meaning of “on the basis of sex” when the statute was passed. He noted:
“It is curious to see this argument in an opinion that purports to apply the purest and highest form of textualism because the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, “sex.” Many things are related to sex. Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sexual assault, “sexual violence,” “sexual intercourse,” and “sexual content.””
He further objected to the majority’s assumption that firing someone for being homosexual meant firing them for their sex.
“Once this is recognized, what we have in the Court’s hypothetical case are two employees who differ in two ways–– sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the employer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex.”
“The Court’s argument rests on a false premise. As already explained at length, the text of Title VII does not prohibit discrimination because of sexual orientation or gender identity. And what the public thought about those issues in 1964 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted.”
Justice Kavanaugh’s dissent also addressed the use of the word “on the basis of sex” in the statute, first by laying out the impropriety of the court adding to the language what was never found there before (thus violating separation of powers) and second, by reading each word literally instead of taking the meaning of the phrase as it was intended.
“The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary meaning. Or alternatively, the plaintiffs must establish that the ordinary meaning of “discriminate because of sex”—not just the literal meaning—encompasses sexual orientation discrimination. The plaintiffs fall short on both counts.”
Textualism, he argues, seeks the ordinary meaning, not the literal. And there is a good reason for it:
“Judges adhere to ordinary meaning for two main reasons: rule of law and democratic accountability. A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.”
“Courts must heed the ordinary meaning of the phrase as a whole, not just the meaning of the words in the phrase. That is because a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase…In other words, this Court’s precedents and longstanding principles of statutory interpretation teach a clear lesson: Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does.”
The majority’s holding will undoubtedly cause ripple effects for future litigation, as will the battle for textualist understanding at the Supreme Court.