42 U.S.C. §2000e-2(a), which will
hereinafter be referred to as “Title VII,” says that it is “an unlawful
employment practice for an employer—
“(1) to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or
national origin; or
“(2) to limit, segregate, or classify his
employees or applicants for employment in any way which would deprive or tend
to deprive any individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individual’s race, color,
religion, sex, or national origin.” [1]
This statute was enacted in 1964, back
when very few were considering same-sex marriage as a possibility, or
transgenderism as anything requiring legislation. But in a recent case that has
achieved instant notoriety, Bostock v. Clayton County, the United
States Supreme Court has ruled on whether the above statutory language covers
employer actions against homosexuals or transgender persons based on their
status as such.
Now it may be doubtful that anyone in
Congress was thinking of homosexual or transgender persons when the statute was
passed. But such an inquiry would have some difficulty. There were 535 members
of Congress, then as now, and it would be impossible to know what was on the
minds of all of them. “Legislative intent,” therefore, is always something of a
term of art.
That’s why the preferred method of statutory
interpretation is to go with the plain meaning of the statutory language
whenever possible. Under that method, 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.” [2]
“Sex” in our age of linguistic engineering
can mean different things to different people. But in 1964 it is safe to assume
that “sex” had the traditional biological meaning. As the Court said in this
case, “This Court normally interprets a statute in accord with the ordinary public
meaning of its terms at the time of its enactment. After all, only the words on
the page constitute the law adopted by Congress and approved by the President. If
judges could add to, remodel, update, or detract from old statutory terms
inspired only by extratextual sources and our own imaginations, we would risk
amending statutes outside the legislative process reserved for the people’s
representatives. And we would deny the people the right to continue relying on
the original meaning of the law they have counted on to settle their rights and
obligations.”
In other words, courts are to look to the
original meaning of the words when interpreting statutes. That is
different than trying to discern original intent, which might be a
metaphysical enterprise. So how did that work out in this case?
First, it is important to take note that “the
statute prohibits employers from taking certain actions ‘because of’ sex.”
Well, what does that mean? “In the language of law, this means that Title VII’s
‘because of’ test incorporates the ‘”simple”’ and ‘traditional’ standard
of but-for causation….That form
of causation is
established whenever a particular outcome would not have happened ‘but
for’ the purported
cause….In other words,
a but-for test
directs us to
change one thing at a time and see if the outcome changes. If it does,
we have found a but-for cause.”
When the wording of the law is taken into
account, the Court’s ruling appears inescapable:
“From the ordinary public meaning of the
statute’s language at the time of the law’s adoption, a straightforward rule
emerges: An employer violates Title VII when it intentionally fires an
individual employee based in part on sex. It doesn’t matter if other factors
besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter
if the employer treated women as a group the same when compared to men as a
group. If the employer intentionally relies in part on an individual employee’s
sex when deciding to discharge the employee—put differently, if changing the
employee’s sex would have yielded a different choice by the employer—a statutory
violation has occurred. Title VII’s message is ‘simple but
momentous’: An individual employee’s sex is ‘not relevant to the selection,
evaluation, or compensation of employees.’ [citation omitted]
“The statute’s message for our cases is
equally simple and momentous: An
individual’s homosexuality or transgender status is not relevant to employment
decisions. That’s because it is impossible to discriminate against a person for
being homosexual or transgender without discriminating against that individual
based on sex. 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. Put differently, the employer
intentionally singles out an employee to fire based in part on the employee’s
sex, and the affected employee’s sex is a but-for cause of his discharge. 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.”
Justice Gorsuch, who wrote the majority opinion,
wasn’t engaged in an act of judicial legislation. He wasn’t betraying the “social
conservatives” who voted for the President who appointed him. He was doing what
it was always clear that he would do, given his well-known judicial philosophy:
applying the text of the law to the facts before him, without interjecting his
own policy preferences. That was supposed to be what the “conservatives”
wanted.
Of course, sometimes the positive law can be
unjust. According to natural law theory, of which your humble servant is an
adherent of the least dignity, an unjust law is no law at all. But is Title VII
unjust, or did it have an unjust result in this case? Consider the facts.
“Each
of the three
cases before” the Court “started the
same way: An employer fired a
long-time employee shortly after the
employee revealed that
he or she
is homosexual or
transgender—and allegedly for
no reason other
than the employee’s homosexuality or transgender
status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare
advocate. Under his leadership, the county won national awards for its
work. After a decade with the county,
Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of
the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation
in the league. Soon, he was fired for conduct ‘unbecoming’ a county employee.
“Donald Zarda worked as a skydiving
instructor at Altitude Express in New York.
After several seasons with the company, Mr. Zarda mentioned that he was
gay and, days later, was fired.
“Aimee Stephens worked at R. G. & G.
R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens
presented as a male. But two years into
her service with the company, she began treatment for despair and loneliness. Ultimately,
clinicians diagnosed her with gender dysphoria and recommended that she begin living
as a woman. In her sixth year with the
company, Ms. Stephens wrote a letter to her employer explaining that she
planned to ‘live and work full-time as a woman’ after she returned from an upcoming
vacation. The funeral home fired her before she left, telling her ‘this is not
going to work out.’”
The question that must be asked is whether
it would have been just to let these employer actions stand. If one is opposed
to homosexuality or transgenderism, does it follow that he should support
actions that deprive such persons of a livelihood? Your humble servant is a
Catholic, and I need not delineate my Church’s stance on these issues. But does
that require me to rise in support of the termination of good employees because
they don’t adhere to the tenets of my religion? On the contrary, “Go then and
learn what this meaneth, I will have mercy and not sacrifice.” (Matthew 9:13) [3]
The statute has been satisfied, justice
has been satisfied, and so should we be satisfied. America will never be great
by inflicting harm.
