Just days ago, the cause of upholding the rights of LGBTQ Americans looked a bit uncertain. Not in terms of public opinion which has moved firmly and irreversibly toward their side (polls continue to show robust support for same-sex marriage, for instance). But last Friday’s surprise announcement that the Trump administration was rolling back Obama-era transgender nondiscrimination rules involving health care and health insurance reflected the depressing reality that the current occupant of the Oval Office is no friend to the equal rights cause. And President Donald Trump has been happily stacking the federal bench, including the nation’s highest court, with archconservatives, a cause dear to his most ardent supporters.
And then a surprising thing happened on the way to the evangelical victory in the culture war. They lost. Bigly. By a 6-3 vote. The Supreme Court announced Monday that it ruled in Bostock v. Clayton County that the 1964 Civil Rights Act and its ban against discrimination on the basis of sex applies to sexual orientation and gender identity. And, lo and behold, the majority included two conservatives, Chief Justice John Roberts and Trump-appointee Neil Gorsuch. That Justice Gorsuch wrote the majority opinion is an especially delicious irony given how hard the political right worked to get him confirmed, an appointment made possible only because Republican senators blocked President Barack Obama’s nominee, Merrick Garland.
The logic behind the ruling should look familiar. It’s the same reasoning that President Obama endorsed — that not discriminating on the basis of sex means not discriminating on the basis of sex. Sexual identity and sexual orientation are simply manifestations of this.
Were the authors of the Civil Rights Act specifically thinking about transgender individuals 56 years ago? Almost certainly not. But then it doesn’t specifically exclude them either. So that leaves the matter in the hands of jurists to reasonably apply the law. To his credit, Justice Gorsuch didn’t look to President Trump to make his choice or to how morality was defined a half-century ago by certain members of Congress; he looked at the text. As he noted, if a company fires a transgender individual born as a male but now identifying as a woman but retains an otherwise identical employee who was born female, the discriminatory behavior is “unmistakable” and “impermissible” under the Act’s Title VII.
The decision is not just a victory in the cause of eliminating discrimination on the basis of sexual orientation or gender identity in the workplace, a restriction Maryland and at least 20 other states have already adopted. It should also slow, if not reverse, the Trump administration’s broader three-year crusade against LGBTQ rights.
Friday’s health care rule that might have left transgender individuals without insurance coverage? That should now be gone. Same with many other rulemakings (many of them instigated to reverse Obama era decisions) involving school bathrooms, homeless shelters and high school athletics, to name a few. The Supreme Court’s logic must be applied elsewhere. The decision is unlikely to end all sex discrimination, particularly against the transgender, of course, but it’s a start.
And to all those social conservatives who say, disingenuously, that the matter of banning discrimination should have been taken up by Congress (knowing full well that the Republican-controlled Senate would never do such a thing), here’s a wakeup call: You are certainly welcome to ask the legislative branch to reverse the Supreme Court. Good luck with that. A lot of Republicans are already pivoting away from the matter.
Even President Trump seems uninterested in criticizing his nominee, telling reporters “we can live” with the “powerful” decision. Hmph. Doesn’t sound like someone who wants to get back in the trenches of the culture war and lob grenades over the Twitter wall.
And, finally, we should note that the ruling is a reminder of the importance of an independent judiciary. The Supreme Court may lean toward a more conservative ideology but it is not held hostage by it. At least a crucial number are not. Justices Samuel Alito, Brett Kavanaugh and Clarence Thomas can one day explain to their friends and family members how they spent a fateful 2020, the year of the global pandemic and protests over racial injustices, fighting to let employers fire workers based on who they love, all in the cause of uncompromising “textualism.” It is unlikely to be remembered as their proudest moment.
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