{"id":10185,"date":"2020-06-18T23:57:00","date_gmt":"2020-06-19T06:57:00","guid":{"rendered":"https:\/\/worldcampaign.net\/?p=10185"},"modified":"2020-06-20T04:50:33","modified_gmt":"2020-06-20T11:50:33","slug":"post4-48","status":"publish","type":"post","link":"https:\/\/worldcampaign.net\/?p=10185","title":{"rendered":"“What Does \u2018Sex\u2019 Mean? The Supreme Court Answers”, The New York Times"},"content":{"rendered":"

Linda Greenhouse,\u00a0<\/span>Contributing Opinion Writer, June 18, 2020<\/p>\n

We\u2019ll soon find out whether the court inflames the culture wars or cools them as its term winds down.<\/em><\/p>\n

Monday\u2019s momentous Supreme Court decision<\/a> protecting L.G.B.T.Q. people against workplace discrimination was so big that it crashed the court\u2019s computer system. For nearly half an hour, those of us at home, anxiously refreshing our browsers, knew that the decision had come down but could download only the first page of the headnote, the official summary: \u201cHeld<\/em>: An employer who fires an individual merely for being gay or transgender violates Title VII.\u201d<\/p>\n

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But who wrote the opinion? And what was the vote? Eventually, of course, the surprises were revealed: Justice Neil Gorsuch and 6 to 3.<\/p>\n

In the few days since then, I\u2019ve been pondering: What do people need to know about Bostock v. Clayton County beyond its bottom line? And where, in this mammoth set of opinions \u2014 a modest 33 pages for Justice Gorsuch but an indigestible 135 pages for the dissents \u2014 does the decision\u2019s beating heart lie?<\/p>\n

The legal academic blogs are full of vigorous debate over who, in this dispute over statutory meaning, was the more authentic \u201ctextualist\u201d: Justice Gorsuch, who called his conclusion the \u201cnecessary consequence\u201d of the \u201cstarkly broad\u201d language Congress chose 56 years ago when it prohibited employment discrimination \u201cbecause of sex\u201d? Or Justice Samuel Alito, whose reasoning boils down to two sentences in his long opinion\u2019s second paragraph:<\/p>\n

\u201cTitle VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: \u2018race, color, religion, sex and national origin,\u2019\u201d Justice Alito wrote. \u201cNeither \u2018sexual orientation\u2019 nor \u2018gender identity\u2019 appears on that list.\u201d<\/p>\n<\/div>\n<\/div>\n

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(Justice Clarence Thomas signed Justice Alito\u2019s opinion. The other dissenter, Justice Brett Kavanaugh, oddly faulted Justice Gorsuch for giving the phrase \u201cdiscrimination because of sex\u201d too \u201cliteral\u201d a meaning, as opposed to what Justice Kavanaugh deemed its \u201cordinary meaning\u201d that happens, in his view, not to include gay or trans.)<\/p>\n

I\u2019ll leave the textualism debate to my academic colleagues. I want to talk about the sharply contrasting vantage points from which the majority and the dissent (and here I refer to Justice Alito, since Justice Kavanaugh\u2019s opinion added nothing of moment) viewed the issue, whether from the past, present or future. These clashing perspectives, more than a debate over the canons of statutory interpretation, help explain the decision and may even help in understanding a court that defied most expectations with its decision and might do so again.<\/p>\n

Justice Gorsuch anchored his opinion in the world of today; the past and the future are not the majority\u2019s concerns. \u201cThese cases involve no more than the straightforward application of legal terms with plain and settled meanings,\u201d he said. That those who wrote those terms into law might not have expected them to apply as the court was now applying them made no difference: The language they wrote is the language they wrote, and \u201cthe limits of the drafters\u2019 imagination supply no reason to ignore the law\u2019s demands.\u201d As for the future, Justice Gorsuch said, \u201cwhether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.\u201d<\/p>\n

Justice Alito\u2019s dissenting opinion, by contrast, was all about the past, of which he appeared almost willfully ignorant, and the future, of which he seemed terrified. First, the past:<\/p>\n

\u201cStatutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time,\u201d Justice Alito wrote. \u201cIn 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity.\u201d He added that \u201cthese exotic understandings of sex discrimination would not have crossed their minds,\u201d and he further observed that in 1964, homosexuality was regarded as a mental disorder and transgender was \u201ca concept that was essentially unknown to the public at that time.\u201d<\/p>\n

My suggestion of willful ignorance stems from this passage in Justice Alito\u2019s opinion:<\/p>\n

\u201cTitle VII prohibits discrimination because of sex itself<\/em>, not everything that is related to, based on, or defined with reference to, \u2018sex.\u2019 Many things are related to sex. Think of all the nouns other than \u2018orientation\u2019 that are commonly modified by the adjective \u2018sexual.\u2019 Some examples yielded by a quick computer search are \u2018sexual harassment,\u2019 \u2018sexual assault,\u2019 \u2018sexual violence,\u2019 \u2018sexual intercourse,\u2019 and \u2018sexual content.\u2019\u201d Does the court really think that Title VII prohibits discrimination on all these grounds?\u201d<\/p>\n<\/div>\n<\/div>\n

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Justice Alito\u2019s computer evidently didn\u2019t inform him that in 1986, 24 years after the passage of Title VII, the Supreme Court recognized sexual harassment as a form of sex discrimination. The case was Meritor Savings Bank v. Vinson<\/a>. The opinion was by William Rehnquist, at the time an associate justice and the court\u2019s most conservative member, and the vote was 9 to 0. Sexual harassment had not entered the lexicon<\/a> until 1979, when a law professor, Catharine MacKinnon, published a pathbreaking book, \u201cSexual Harassment of Working Women.\u201d Years of feminist activism<\/a>followed in an effort to incorporate the concept into existing law.<\/p>\n

In fact, the Supreme Court has consistently read Title VII generously to cover situations that were surely not on the screen of the statute\u2019s sponsors. A unanimous opinion<\/a> by Justice Sandra Day O\u2019Connor in 1993 adopted a broad definition of a workplace atmosphere so hostile or abusive as to amount to sex discrimination. And in 1998, another unanimous opinion<\/a>, this time by Justice Antonin Scalia, the patron saint of judicial textualism, held that Title VII covers sexual harassment when both perpetrator and victim are of the same sex.<\/p>\n

Forced by the majority opinion\u2019s highlighting of that precedent, Oncale v. Sundowner Offshore Services, to acknowledge its existence, Justice Alito dismissed it as \u201cthoroughly unremarkable.\u201d Given his omission of the Meritor Savings Bank precedent 23 pages earlier in his opinion, Justice Alito\u2019s explanation for why the Oncale case proved nothing was remarkable indeed: that after all, the court had already established that sexual harassment was covered by Title VII.<\/p>\n

So much for the past. And what of the future? The man is not lacking in imagination. Justice Alito offered a 10-page checklist of what to fear from the Bostock decision. Among them, bathrooms! Citing a brief<\/a> filed by an organization called Defend My Privacy, he warned that \u201cfor women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.\u201d And then there is free speech! (\u201cThe court\u2019s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures.\u201d)<\/p>\n

And of course, Justice Alito worried about its impact on freedom of religion, a subject that deeply engages the court in any event. Within the next few weeks, the court will decide two cases on the scope of the so-called ministerial exception, a judicially created concept that exempts churches and religious institutions from having to abide by federal anti-discrimination laws for some categories of employees. Which categories? Ministers, obviously, but football coaches at religious schools? Lay classroom teachers? Receptionists? That\u2019s what the court will tell us shortly. Without doubt, this week\u2019s decision heightens the significance of those imminent rulings<\/a>, given the receptivity justices showed during oral arguments to very broad application of the exception. Based on last month\u2019s arguments in the two cases, I don\u2019t expect to be cheering the result.<\/p>\n

But Monday\u2019s decision is something to cheer, even if there prove to be holes in the web of legal protection that six justices have cast over a group of people who not very long ago were, to paraphrase the retired Justice Anthony Kennedy, strangers to the law. We are all made better off by the court\u2019s insistence that Title VII protects individuals.<\/p>\n

\u201cTitle VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women,\u201d Justice Gorsuch wrote. \u201cInstead, the law makes each instance of discriminating against an individual employee because of that individual\u2019s sex an independent violation of Title VII.\u201d<\/p>\n<\/div>\n<\/div>\n

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What does it mean to say that the Bostock decision is anchored in today\u2019s world? More than 200 major employers told the justices in a brief<\/a> they filed on behalf of the gay and transgender plaintiffs that a quiet revolution is taking place with the stamp of approval of the establishment of which they are a part. As the court was considering the case following last October\u2019s argument, a gay man was running a credible campaign for a major party\u2019s presidential nomination.<\/p>\n

In the next few weeks, we will learn, among other things, whether the court will abide by its precedents on abortion. But a series of suprise decisions have dominated the past week.<\/p>\n

On Monday, over the dissenting votes of Justices Thomas and Alito, the court refused to hear the Trump administration\u2019s challenge<\/a> to California\u2019s \u201csanctuary city\u201d policy, which protects immigrants in state detention from being turned over to federal officers. The court had the administration\u2019s petition under active consideration since January before denying it<\/a> without explanation.<\/p>\n

And in other action on Monday, only Justices Thomas and Kavanaugh were left to complain when the court, to the surprise of nearly everyone, turned down<\/a> 10 Second Amendment petitions that would have given what once looked like an eager majority a chance to further expand individual gun rights.<\/p>\n

Then, on Thursday, the court blocked the Trump administration\u2019s effort to end the Obama administration\u2019s program that protects hundreds of thousands of young immigrants known as Dreamers from deportation. The 5 to 4 decision, with a majority opinion by Chief Justice Roberts, offered the White House a chance to justify the termination on firmer legal grounds. But at the same time, the chief justice appeared to doom such an effort to failure by stressing the need to take into account the \u201creliance interests\u201d of the young people who have used the opportunity to deepen their roots in the only country they have known by finishing school, building families and contributing to the economy.<\/p>\n

Random events, or straws in the wind \u2014 evidence that the justices have decided to do their part to cool the culture wars rather than inflame them? We\u2019ll see soon enough.<\/p>\n

Reading Justice Gorsuch\u2019s Bostock opinion, I was thrown back to the summer of 2017, when I found myself in a social gathering of a half dozen fellow progressives and one prominent conservative lawyer with whom we were all friendly. It was a civil but increasingly pointed conversation as we pressed the lawyer, first gently and then more firmly, on whether he actually supported the Muslim travel ban and other actions of the Trump administration\u2019s opening months that troubled the rest of us. He took the bait in good humor but finally, all but throwing up his hands, he cut the conversation off.<\/p>\n

\u201cLook,\u201d he said. \u201cWe got Gorsuch.\u201d<\/p>\n

Yes, we did.<\/p>\n

Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of several books. <\/em><\/p>\n

The New York Times<\/a><\/p>\n<\/div>\n<\/div>\n<\/section>\n","protected":false},"excerpt":{"rendered":"

Linda Greenhouse,\u00a0Contributing Opinion Writer, June 18, 2020 We\u2019ll soon find out whether the court inflames the culture wars or cools them as its term winds down. Monday\u2019s momentous Supreme Court decision protecting L.G.B.T.Q. people against workplace discrimination was so big that it crashed the court\u2019s computer system. For nearly half an hour, those of us […]<\/p>\n","protected":false},"author":1001004,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[53],"tags":[],"_links":{"self":[{"href":"https:\/\/worldcampaign.net\/index.php?rest_route=\/wp\/v2\/posts\/10185"}],"collection":[{"href":"https:\/\/worldcampaign.net\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/worldcampaign.net\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/worldcampaign.net\/index.php?rest_route=\/wp\/v2\/users\/1001004"}],"replies":[{"embeddable":true,"href":"https:\/\/worldcampaign.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10185"}],"version-history":[{"count":4,"href":"https:\/\/worldcampaign.net\/index.php?rest_route=\/wp\/v2\/posts\/10185\/revisions"}],"predecessor-version":[{"id":10205,"href":"https:\/\/worldcampaign.net\/index.php?rest_route=\/wp\/v2\/posts\/10185\/revisions\/10205"}],"wp:attachment":[{"href":"https:\/\/worldcampaign.net\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10185"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/worldcampaign.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10185"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/worldcampaign.net\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10185"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}