Last week, the Supreme Court issued its hotly anticipated decision in Bostock v. Clayton County, Georgia. Writing for the 6-3 majority, Justice Neil Gorsuch held that Title VII of the Civil Rights Act of 1964 protects LGBT persons from sex discrimination in employment.
Pundits on the Left and Right have near-universally expressed shock that Justice Gorsuch and Chief Justice Roberts sided with the Court’s four liberals in this blockbuster LGBT rights case. While I am pleased by the result, I was not surprised.
Earlier this year in an article published by the California Law Review Online, I predicted that Justice Gorsuch would find that transgender people are protected by Title VII. At the time, some deemed my forecast far-fetched. Among other things, it hinged on Gorsuch ignoring several arguments raised and concessions made by the employees’ counsel at the October 2019 oral arguments. And even more unfathomable to some, it turned on Gorsuch taking a strict textualist approach to Title VII, a methodology that is widely regarded as politically conservative and thus commonly assumed to be inhospitable to LGBT rights. As it turns out, this is precisely what happened.
So how did someone like me, a young litigator and emerging scholar, predict the result in Bostock?
I have studied transgender rights for years and actively litigated sex discrimination cases on behalf of transgender clients throughout the country, almost exclusively in front of ideologically conservative judges. Drawing upon my own experiences and those of my colleagues, I noticed a promising through line—conservative judges tend to side with transgender workers in these cases, and in some courts, are more likely to do so than their more liberal colleagues.
When conservatives side with transgender litigants they tend to signal that they see transgender women as women and transgender men as men and adopt a hard textualist position rejecting the notion that affixing a transgender label on a worker deprives her of statutory protection. Implicitly, these conservatives recognize the reality and dignity of transgender lives.
Many examples illustrate this phenomenon. The most critical for Bostock was Kastl v. Maricopa Community College, a 2009 per curiam opinion that then-Judge Gorsuch joined, sitting by designation on the Ninth Circuit. Kastl held that a transgender woman can bring a sex discrimination claim under Title VII. The opinion cogently positions the plaintiff as a woman, albeit a transgender woman, and steadfastly rejects the proposition that being transgender deprives workers of statutory protection. Kastl reasons that, “it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectation’s for men or women.” Its logic is straight forward, simple, and, frankly, pure Gorsuch.
Bostock, in many respects, fulfills the conservative, textualist promise of Kastl. Bostock reasons that since Title VII does not expressly exclude LGBT persons, they are protected. Moreover, because there is no way to discriminate against an LGBT person without taking into account sex, discrimination against them for being LGBT is a form of sex discrimination. It also rejects the notion that extra-textual biases—either those supposedly held by Congress in 1964 or a subset of the American public today—must be factored into the analysis.
While some commentators have decried Bostock as a cold, calculated textualist screed, I see it as evidence that textualism can propel major advances in LGBT rights. Most certainly, Bostock reads differently than other path-breaking LGB rights opinions authored by Justice Kennedy, who retired in 2018. Compared to Obergefell v. Hodges, Kennedy’s 2015 opinion securing marriage equality, Bostock is a dry read. Where Obergefell invokes themes of dignity and love and waxes poetic about evolving understandings of equality, Bostock instead meticulously identifies and refutes logical fallacies baked into arguments against LGBT statutory coverage. Unlike Obergefell, passages of which some of my dearest gay and lesbian friends incorporated into their wedding ceremonies in the last few years, Bostock’s text is unlikely to be recited outside of classrooms and courtrooms.
However, there is a peculiar beauty to Bostock. At a time when the far-right wing of the Republican party has demonized transgender lives for political gain, Bostock is a critical reminder that principled, ideologically conservative jurists are not only willing to side with LGBT Americans when the law requires it, but they are also able standard-bearers.
Bostock is also a win for principled textualists of all political persuasions. Last September, Newsweek’s cover story presciently asked “What would Scalia do?: Three LGBTQ cases put the Supreme Court’s conservative principles on trial.” In long-form, Roger Parloff argued that the Court’s own credibility was “on the line” in Bostock. On the text alone, it was plain the LGBT employees should prevail. That is why, among others, a group of conservative, mostly Republican, amici filed a brief in support of the employees in Bostock. And yet, many worried that the Court’s conservative block would acquiesce to far-right, fringe pressure and judicially rewrite Title VII to strip LGBT Americans of protection. Because such a move could not be squared with textualist commitments, Bostock was correctly seen as a test.
It is no surprise Justice Gorsuch played a critical part in helping the Court rise to the occasion. Justice Gorsuch is not a sunshine textualist. Textualism is a cornerstone of his judicial philosophy. In his recently published book, A Republic, If You Can Keep It, Gorsuch explains how textualism, in its purest form, guides his decisions. He writes, “[T]extualism honors only what’s survived bicameralism and presentment—and not what hasn’t. The text of the statute and only the text becomes law. Not a legislator’s unexpressed intentions, not nuggets buried in the legislative history, and certainly not a judge’s policy preferences.” These textualist commitments run through Bostock.
Those on the right decrying Gorsuch as a turncoat would be wise to heed the words of the late Justice Scalia, the father of modern textualism. As George Conway reminds us, Scalia was adamant that “a textualist reading will sometimes produce ‘conservative’ outcomes, sometimes ‘liberals’ ones.” For Scalia, it was a “slander” to call textualism a “device calculated to produce socially or politically conservative outcomes.”
While some see Bostock as a betrayal, Justice Gorsuch’s opinion actually helps shore up textualism’s bona fides. The fact that Justice Gorsuch’s textualism is capacious enough to embrace statutory constructions that further LGBT rights, where the law requires as much, is a triumphant moment for textualism.
Ezra Ishmael Young is a nationally recognized civil rights attorney. He currently maintains a boutique private practice in New York City. He focuses his practice on trans rights, especially on recognition, employment protection, health care, and insurance coverage rights.
Suggested citation: Ezra Ishmael Young, Bostock is a Textualist Triumph, JURIST – Professional Commentary, June 25, 2020, https://www.jurist.org/commentary/2020/06/ezra-young-bostock-textualist-triumph/.
This article was prepared for publication by Cassandra Maas, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
