The Civil Rights Act of 1964 prohibits discrimination based on sex. But in a 6-3 Supreme Court opinion published yesterday, Justice Neil Gorsuch, usually a reliable conservative, joined Chief Justice John Roberts and four liberal justices to show that the law also prohibits discrimination against gay and transgender people. Let’s look at parts of his opinion to see how the logic got him to this point.
What we want from our Supreme Court, ideally, is dispassionate logic that follows the law and the Constitution. That’s its job. There are, of course, multiple points of view on what is logical, which is why it takes a Supreme Court to sort them out.
In this case, a conservative justice published an opinion that liberals will embrace. How did he get there?
Key points in the Gorsuch opinion
How did Gorsuch get from “no discrimination based on sex” to “no discrimination against homosexuals or transgender people”? Because, as he wrote, any discrimination against these folks starts with discriminating based on sex. He has not created a new set of protected classes not contemplated in the 1964 law. He has shown that this discrimination is a subclass of sex discrimination, which is prohibited.
Here’s some of the opinion:
[In the Civil Rights Act], in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. . . .
This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.
- Protecting both sexes (as a group) equally is no defense.
- Firing a person for not adhering to a particular gender role implies that there is a correct behavior for that gender role.
- Discriminating based on that “correct” gender role means that a person of that gender must behave a certain way, presumably differently from a person of a different gender, and thus this is sex discrimination.
- Therefore discriminating based on “correct” gender role is sex discrimination, and is illegal under Title VII.
This logic is even clearer in this passage:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. . . Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
Clarity: You can’t discriminate against a homosexual or transgender person without first discriminating based on sex.
Notice that this opinion has not extended the law to classes not explicitly included. Gorsuch has shown that the class that was included — sex or gender — is sufficient to establish discrimination against the new classes — homosexual and transgender people.
The Gorsuch doctrine
Gorsuch’s opinion is fascinating to me, because it implies that discrimination based, not just on gender, but on traditional gender roles, is against the law.
Start with sex discrimination. This is why there are male flight attendants and women firefighters. If you can do the job, you should be able to get the job and keep the job, regardless of gender.
Could an employer insist that all women they employ be blondes? If I’m reading this opinion right, no, because that would be defining what a woman in the job would have to be, which is discriminating on the basis of sex.
Could an employer insist that all women they employ be beautiful — and reject, for example, women with asymmetrical faces or shaved heads, if they don’t perceive those to be beautiful? According to Gorsuch, no.
This is a triumph, not just for gay and transgender Americans, but for everybody who doesn’t conform to outdated ideas of gender. It says you can be a man any way you like, and a woman any way you like, and no employer can discriminate based on who you are and how you express that gender.
Gender “norms” are a construct. Every day I am expanding my idea of who people are, and of how gender relates to that. Now Neil Gorsuch and Chief Justice John Roberts have joined me. And that’s one of the nicest things I can say about my government right now. I feel like somebody is listening.