Unraveling the Mystery of Justice Gorsuch’s Majority Vote in Recent LGBTQIA Civil Rights Case

Cate A. Caperton

Elon University School of Law, J.D. Candidate 2021

                 In an important 6-3 decision, the United States Supreme Court held that employers could not discriminate, fire, or refuse to hire an employee for being gay or transgender and held that to do so would be a violation of Title VII of the Civil Rights Act of 1964. Bostock v. Clayton Co., No. 17–1618, slip op. at 2 540 U.S.  ____ (2020), https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf. This holding, brought forward to the Supreme Court by three different Title VII discrimination Circuit Court cases, reflects the changing of American culture.

              Firstly, this decision shows how far we have come as a society in terms of advancing LGBTQIA+ rights. Historically, the LGBTQIA+ community has legally been denied food, housing, healthcare, and job opportunities, and this decision is a major victory in prohibiting that established prejudiced practice. Despite many state governments not having adequate legal protection for the LGBTQIA+ community, the federal law will now protect them from adverse employment decisions based on their gender and sexuality.

              Secondly, this Supreme Court decision comes as a blow to the current Presidential administration and unfortunately illustrates the division in American politics.  President Trump not only attempted to remove provisions protecting transgender individuals from the Affordable Care Act, but supported the defendant employers in the current case as well. The Supreme Court ultimately found for the plaintiff employees, and this division reflects the partisan disconnect that is far too apparent between our branches of government.  Justice Alito’s lengthy dissenting opinion encompasses this divide.

              Additionally, the Supreme Court’s 6-3 vote caught the public by surprise. The majority included the four more liberal Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor alongside Chief Justice John Roberts, who has increasingly become a “swing vote.”  It was, however, a pleasant shock for many to discover that Justice Gorsuch, who historically has been perceived as more conservative on similar social issues, was the sixth vote and personally authored the majority opinion.

While many may speculate why Justice Gorsuch voted this way, his opinion is consistent with his textualist judicial philosophy.  A textualist judicial philosophy, commonly associated with the late Justice Scalia, interprets the words in a statute in accordance with their plain and ordinary meaning.  In applying the Civil Rights Act of 1964, Justice Gorsuch argued that the statute plainly prohibits discrimination based on sex, and that gender and sexuality are implied within the scope of this protection:

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.

                                                                                                    (Id. Pp. 2, J. Gorsuch)

Though many activists welcomed the ultimate result of this opinion, for some this reasoning is an oversimplification and common misunderstanding of the current definitions of ‘gender’,  ‘sex’, and ‘sexuality’ and doesn’t reflect modern intersectionality. Justice Gorsuch uses the textualist approach to argue why ‘gender’ and ‘sexuality’ are terms that have evolved out of the antiquated idea of ‘sex’, and thus the Civil Rights Act of 1964 should also extend protection for those in the LGBTQIA+ community.

              Lastly, this Supreme Court decision is a major step in the right direction for equality, but there are some limitations that can hinder this progress. For example, the holding doesn’t extend to certain small businesses and still allows for specific religious reasons for refusing to hire LGBTQIA+ individuals (Justice Gorsuch states on Pp. 32 of his opinion, “As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a).”) Despite the narrower holding of this Supreme Court case, it is nonetheless a victory in this long fight for justice.