‘On the grounds of sex’: SCOTUS brings sexual orientation within the ambit of Title VII

On June 15 2020, the US Supreme Court decided in Bostock v. Clayton County that Title VII of the 1964 Civil Rights Act forbids termination of employees because of their sexual orientation or because they are transgender.

Gerald Bostock and Donald Zarda had each alleged termination from work because of their sexual orientation. Aimee Stephens alleged termination from work because of her intention to live as a woman, having been assigned male at birth. The Zarda and Stephens claims had been accepted by the Courts of Appeal for the Second and Sixth Circuits respectively, whilst the Bostock claim had been rejected by the Eleventh. Justice Gorsuch gave the 5-4 opinion of the Supreme Court, holding that such termination does constitute discrimination ‘because of that individual’s sex’.

There were three central steps in Justice Gorsuch’s reasoning. First, he argued that the original intent of Congress in drafting the 1964 Act is not relevant. Rather, the question is what the original meaning of the statute was when drafted. Through this lens, ‘sex’ within the context of the Act is ‘male’ or ‘female’.

Second, Justice Gorsuch assessed the precedents and determined that Title VII is engaged wherever sex is a ‘but-for’ reason for treatment. That is, Title VII is violated wherever consideration of sex is a necessary part of an employer’s reason for termination. Sex need not be the only reason for termination. Justice Gorsuch also flagged that the causation test of Title VII can go further and be more generous than ‘but-for’: the so-called ‘motivating factor’ link. However, he declined to assess the implications of this link, as but-for causation had been conceded by both parties in argument.

Third, Justice Gorsuch responded to the employer argument that there could not be ‘sex’ discrimination, as gay men and gay women were treated the same. He reasoned from the language of “individuals” in Title VII to hold that the prohibition on discrimination is one focussing on case-by-case treatment (and whether sex is a but-for reason), rather than on the aggregate treatment of men and women as groups in the workplace.

Justice Alito filed a dissent, joined by Justice Thomas. He argued that the majority opinion goes beyond the judicial role, amounting to an ‘updating’ of old statutes to reflect the current values of society. Justice Alito noted that a bill, which clarified the Civil Rights Act meaning of ‘sex’ as encompassing sexual orientation and gender identity, had stalled in the Senate. This, he argued, demonstrated that Title VII does not include such protection. Justice Gorsuch responded by stating that the stalling of the bill does not necessarily speak to the original meaning of the statute, as there is no way of knowing why the bill failed.

Justice Kavanagh also filed a dissent, echoing the separation of powers concerns in the Alito dissent. Furthermore, he argued that the majority failed to use the ordinary 1964 meaning of ‘sex’, and instead (incorrectly) used the literal meaning. Justice Gorsuch responded by outlining that such a distinction incorrectly conflates ‘original meaning’ with ‘originally intended result’. For Title VII, he argues, the literal and ordinary meanings of sex are one and the same.

The judgement in Bostock has been welcomed by LGBT advocates in a context where federal and state legislative protections have been difficult to pass. Furthermore, as the Alito dissent notes, the ruling could have implications for other ‘sex’ discrimination prohibitions, such as in the 1968 Fair Housing Act or in Title IX of the Civil Rights Act itself (concerned with access to education).

Nevertheless, there is a central limitation in the ‘sex’ discrimination approach. Title VII permits certain treatment on the basis of sex where this is a bona fide occupational requirement. However, in these permissible single-sex spaces, it will be difficult for courts to apply the ‘but-for’ test where an LGBT individual receives unfavourable treatment, as there is no ‘comparator’ of the opposite sex. In such situations, unfavourable treatment can only be considered as but-for the complainant’s same-sex attraction or gender assigned at birth, not their sex.