Some Notes on the US Supreme Court's Opinion in Bostock v. Clayton County Georgia

Please note: these Notes express just one radical feminist's opinion. These are very early and informal reactions to the Bostock/Harris decision. There are many other concerned radical feminists who are also commenting on this case and I'm just one of us.

My background: I'm a retired California lawyer. I have also served as an investigator in the US Office for Civil Rights for several years, wrote my Harvard Law School thesis on US administrative law relating to Title VII, served as an affirmative action coordinator at a university and a community college, and handled employment discrimination cases in private practice during my career.

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In a strongly-written and historic opinion, the US Supreme Court ruled on June 15, 2020 that to discriminate in employment based on transgender status or sexual orientation of an employee violates Title VII of the US Civil Rights Act.

You can read it here. The Majority Opinion is about 33 pages long. https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf), Incorporating Harris v. EEOC The opinion is very clearly written to be accessible to non-lawyers.

It relies on several cases the lawyers did not see coming, such as the 1971 Philips v Martin Marietta case, which has been roundly criticized over the past 50 years (see, e.g., https://scholarship.law.edu/cgi/viewcontent.cgi…). It does not disturb the holding in the sex-stereotyping case of Price-Waterhouse v. Hopkins, but doesn't follow its reasoning or rely on it in its holding. It relies to some extent on the Supreme Court case of Oncale v Sundowner Offshore Services , a case where male employees sexually harassed a male employee, to reason that if the facts in a case show a negative employment decision is caused by "sex-plus" some other factor, Title VII applies and makes it a violation.

It affirms and strengthens a traditional standard for a finding of discrimination in individual rather than class cases. Of the several traditional standards and tests for discrimination discussed, it relies most heavily on the "sex-plus" test coupled with a close reading of the phrase "because of sex" in Title VII to find that discrimination based on sexual orientation and transgender status is forbidden sex discrimination, because such discrimination necessarily includes sex, a forbidden factor.

In the current legal battle between the ACLU, which here represented the employees in all 3 of the cases decided in this Opinion, and the Alliance Defending Freedom, the conservative law consortium that represented the employers, the ACLU has won.

The holding is a triumph for LGB and T people's rights in the workplace. They don't need an Equality Act any more. The Court just adopted it.

The US Supreme Court ruled 6-3 in favor of Justice Gorsuch's decision joined in by all liberal members and Chief Justice John Roberts. There is an indication of future serious division in the conservative majority's methods of statutory construction, with Kavanaugh, Alito, and Thomas dissenting.

Justice Ginsburg joined in the decision which for her caps a long and illustrious involvement in sex discrimination law.

For radical feminists, the case is a blow in that there's no provision or distinction made regarding women's rights to the extent they conflict with LGB and T rights. Conflicts between the two groups will henceforward be weighted toward LGB and T positions as women attempt to maintain female-only spaces and programs. Title VII of the Civil Rights Act of 1964 is the flagship of civil rights of women generally in the US; other important nondiscrimination statutes in areas such as public housing, health, and education, including women's sports, will very likely be affected in ways that negatively impact women.

The implications will take some time to work out. Gorsuch in oral argument had expressed concern about the social impact of such a broad ruling as he has now made. But in his decision, he expressly rejects consideration of any of the public policy arguments made in the briefs, and expressly states that it's not the Court's concern how a given decision will play out in society. That social impacts will be very significant. It appears that ANY "gender" expression is covered, for one thing.

This is, I think, the strongest interpretation of Title VII's sex discrimination prohibition since Price- Waterhouse v. Hopkins in 1989. Its applications are likely to outweigh Price-Waterhouse by far. It re-sets the legal standards for a finding of discrimination and elevates sex discrimination in the workplace to a new importance.

FAQs:

1. Q: Why didn't the three women Justices write separate concurrences?

A: Ginsberg to Sotomayor and Kagan: "Do you believe it? Gorsuch and Roberts are going to give us the win!"

Sotomayor: "Let's do some concurrences! Yippee!"

Ginsburg: "Why rock a boat that's already rockin' just the way we want?"

Sotomayor: But what about women as a class? He didn't write about them. We can concur and dissent about not carving out some protections for them. Shouldn't we?"

Kagan: "Women will be fine. They always get by."

2. Q: Doesn't the Court's Opinion support biological women and sex-based rights by constantly referring to biological sex in the opinion?

A: No. The use of biological sex terms in the language of an opinion that ends up melding trans women and women indissolubly in US law is not a win for women, because it only reflects that Gorsuch wanted to use conservative language rather than trans rhetorical language to announce his decision. Bio sex exists, sure, but much more significantly, is expressly not a reason to distinguish females from trans women in this opinion. The holding is devastating for women seeking to maintain any kind of bio sex spaces or programs.

Looking at women's bathrooms, for instance: if bio women have exclusive bathrooms, trans women are automatically included by operation of the new law that Gorsuch has made. Women can raise their biological differences, but any differentiating arguments will be treated as potential sex discrimination against trans women. I don't see how a privacy argument that women need to be away from trans women for any reason can be made. The Congress can pass a law correcting this, but both Democrats and Republicans are unlikely to intervene for different reasons.

This conflicts of rights issue, where groups within a protected civil rights category are in conflict with each other with no legal basis for resolving the issue, is why the organization Feminists in Struggle has proposed a much better solution, to place trans people in a new separate protected category rather than the sex category -- to avoid difficult conflicts of rights questions, which I believe will result in endless cases slanted against women. This would have needed to be done legislatively, but it is even unlikelier to occur after this judicial decision.

3. Q: What impact will this ruling have on other US nondiscrimination laws and regulations?

A: Title VII decisions can be and are precedents for decisions based on other federal nondiscrimination statutes. The precedent of the Bostock case is clear: there is no legal basis for distinguishing between trans women/girls and other girls in the US, except for very narrow bfoq (bona fide occupational qualification) exceptions in employment cases, and the very limited exceptions of Title IX for contact sports and some programs designed to help girls' educational programs.

A state law in conflict with the Bostock decision, like the new law in Idaho denying trans girls the right to play in women's sports, will probably be overruled. Trump's recent new Rule instructing that his Office for Civil Rights will not investigate trans or LGB complaints, which was finalized only a few days before the decision, is dead because of the Bostock decision, in my opinion.

The Bostock opinion will definitely have profound impact on Title IX school cases. Gorsuch said that the Court wasn't jumping ahead to decide all such cases -- of course not. They will be brought one by one and fall in behind the Bostock case though to the extent the precedent is relevant.

Gorsuch's opinion redefines sex discrimination and not just in Title VII. There's no basis for narrowly reading this Opinion to limit the re-definition I see.

4. Q: What happens to the bona fide occupational exception of Title VII?

A: The bfoq exception has already been read extremely narrowly by the courts. That won't change under the combined Harris, Bostock and Zarda cases with Justice Gorsuch's consolidating opinion. It would be a good idea to check out bfoq caselaw, but as I recall, it's so narrow it's barely there.

Attempts to broaden the Title VII bfoq or Title IX exceptions will be unlikely to succeed -- again, there is no argument left that differentiates bio women from gay or trans men, for instance. There is no basis for deciding conflicts between the two groups -- they've been melded together in the statute.

The court's ruling that trans women are covered in the sex category without qualification controls all future cases. I think it will be very hard to challenge this decision with a view to retaining women's programs and safe spaces by looking to the bfoq exception.

So my thought is that established bfoq cases will be re-tested in the courts. Most cases will I hope stand up. But that exception never has been a big help to women, and it's going to be less help now.

5. Q: If a man can't present as a woman on the job, but a woman can present as a woman, that's discrimination -- is that why the employee won in the Harris part of the Bostock opinion?

A: The Court performed a very old-fashioned analysis of the facts in the Harris portion of the opinion. The Opinion uses three older technical standards and arguments in part in reaching its holding. These are called the sex-plus, partial motivation, and but-for tests. In addition, the Court used questionable logical arguments. one of which does sound like the logic of this question.

The Opinion says a man can’t be fired for dressing like a woman...because a woman would not be fired for dressing like a woman. A man can't be fired for being interested in men...because a woman wouldn't be fired for being interested in men.

But it's just as logical to answer as the employer-side ADF does: "No, that's wrong logic. A man can be fired for dressing like a woman...because a woman can be fired for dressing like a MAN." If it's bad for the goose AND just as bad for the gander, where's the discrimination? And in fact, at the Harris funeral home, women did have to wear skirts and presumably would have found themselves seeking other employment if they had written a letter stating they planned to start wearing pants. So the employer was equally discriminatory against men and women, which didn't use to violate Title VII.

Same goes for a requirement that employees be het. To bend it like Gorsuch, a man can't be fired for liking men if a woman can't be fired for liking men. To bend it like ADF, a man CAN be fired for liking men if a woman can be fired for liking...WOMEN. And the ADF bend reflected the state of the actual facts of the Harris portion of the Opinion. A man was fired for presenting as a woman, but women would have been fired for presenting as men.

Gorsuch might be using what ADF calls "the wrong comparator". How do we know which is the wrong comparator? You've got me. Both "bends" are true, but if you choose Gorsuch's, the employee wins the case, and if you take ADF's the employer wins the case.

Gorsuch's opinion has overruled the "equal burden" rule. He justifies this with his intuitive choice of comparator. The Opinion apparently overrules a 2006 Title VII case called Jesperson v. Harrah's Operating Co.(https://repository.usfca.edu/cgi/viewcontent.cgi…): "On appeal, the Court explained that it is okay to have different dress and/or grooming requirements for men and women, so long as doing so does not place an unfairly heavy burden on either sex."
https://www.rnelsonlawgroup.com/…/rules-and-risks-for-gend…/

In other words, the law until June 15, at least in the 9th Circuit Court of Appeals, was that if men and women are "equally burdened" by differing grooming codes, it's not discriminatory. The same logic would apply to a code that "men must only prefer women" and "women must only prefer men", wouldn't it? It also would apply to cases where men are told not to perform like women and women are enjoined not to perform like men, right? Everybody gets treated equally badly. They are "equally burdened" in the legal lingo, and so there's no violation of Title VII. But that was pre-Bostock.

Gorsuch could just have easily used ADF's comparator and ruled for the employer, is what I'm saying. Needless to say, this sort of logic based on picking one's comparator from caprice and deciding a major Supreme Court case based on that caprice, is much disfavored these days, and I can hardly believe Gorsuch had the innocence to use this argument from logic which wiser interpreters of Title VII have long since abandoned.

Maybe Noam Chomsky can explain which comparator is "wrong" when strictly speaking, both are right.

So why did Gorsuch "bend" the way he did? I only know this was a leap of faith, not what the "faith" was. More on this in Part Three.

6. Q: Where are the women in the Bostock Opinion with respect to trans rights?

A: Men played this game 100% from the start, and women were invisible throughout, except for their abstract usefulness as one anti-trans argument. Male factions pushing for the field goal in the final seconds included the ACLU (Team Beat ADF), the ADF and a bunch of other RR organizations (Team Beat ACLU), President Trump and Roger Severino (Team We Hate Anything Obama Liked), Thomas Rost (Team Capitalist At-Will Employment), and Aimee Stephens, Pink News, etc (Team Trans).

Team Trans had the outsize luck that it offered Justices Gorsuch and Roberts (Refs for Judicial Independence) the chance to cut the apron strings with Dad.

None of it ever had anything to do with women. We were barely there (in fairness, some of us women were cheerleaders). Gorsuch didn't even notice us.

7. Q: How is Gorsuch's "Originalism" different from the old statutory construction test called "Plain Meaning"?

A: Justice Gorsuch kept his nose on the words on the statute, without any regard for legislative intent in adopting the statute, social upheaval arguments, the purposes of the statute, or even the plain meaning of single words like "sex". The Bostock opinion instead hangs on the grammatical location of the word "sex" within Title VII: "because of sex" is the phrase that makes the Opinion.

How does Gorsuch's hyper-close attention to the words of the statute differ from Justice Kavanaugh's as laid out in Kavanaugh's dissent? Kavanaugh uses the "plain meaning" test and would exclude LGBT people from the sex category since "sex" means biological sex.

"Originalism" (also called "Textualism") is seen by many conservative judges as a legacy of the late Justice Antonin Scalia, who is much revered by them. While i won't go into this alleged philosophy, I will comment on the result in this case: a deeply conservative judge who supposedly narrowly construes statutes, finds a way to engage in massive social engineering and call it "conservative". However radical the result, the in-context words in a statute must be blindly carried out. Whether the result is social chaos or not is not the Court's concern.

8. Q: Does Gorsuch using a phrase like "presented as male" mean other courts may have to use the same kind of trans rhetoric, or will it influence future cases?

A: The choice of language in an opinion is important. It seems to me that Gorsuch was very aware of this and didn't use language from trans ideology on the whole. but the "presented as male" phrase he used does seem to be taken from trans/postmodernist rhetoric.

I am guessing, but think Gorsuch was trying to walk a tightrope of keeping his language neutral. Here, it's true he could have said Stephens "presented as his biological sex, male" and that would have been a lot cleaner. But he also passed up a lot of other chances to use trans language.

Gorsuch's phraseology is nevertheless biased and shows where he's going with the case. But he can't establish a legal precedent just by using strange phrasing in the course of an opinion. At most, this phrase might be thought of as "dicta", irrelevant to the holding and having no legal weight. It doesn't imply people only "present" as a sex rather than being a sex, esp. since he refers to sex so many other times in its common biological meaning.

9. Q: Does Gorsuch treat biological women as a class in the opinion, or use a class analysis?

A: The analysis he makes ignores the idea of the whole system of male domination over US history. He looks at the statute like the Sixth Circuit judge did, as if "sex" is an abstraction with no specific female or male component. He is ignoring trans ideology, but he's also very much avoiding acknowledging women as a class that have been subject to systemic discrimination. I believe that this recent emphasis on individual right v a class right is strongly urged in some of the ADF amicus briefs in the consolidated cases. I've also seen it discussed in other decided cases recently.

The Civil Rights Act does prohibit discrimination against individuals, and does not push women as a class. I do think there was an earlier emphasis on class suits and complaints starting with the WEAL complaints against universities in the early 1970's. But I think the later Walmart case, which didn't allow women employees to sue as a class relied on that "individual" language. There are far fewer class suits now. The whole idea that women is a class has been weakened by this preference not to employ a class analysis.

There are severe problems with the deficient structure of laws protecting women in the US -- that there is only a negative right not to be discriminated against, and that the statutes prohibit discrimination based on "sex" rather than discrimination against women.

The Bostock Opinion's emphasis on how Title VII applies to individuals, not classes, is a red flag to me. If there's no sex class, just individual people getting their complaints resolved one by one, then there's no class oppression, aka patriarchy. The implication is that feminism has no real grounding.

I do think this case is another in a string of cases changing sex discrimination law into an abstraction of sex that makes the class oppression of women, the original problem the statute was intended to remedy, more and more distant and irrelevant to the court's reasoning.

10. Q: What's the impact on the US Office for Civil Rights' new Rules saying it won't investigate complaints from trans and LGB people?

A. OCR Rules say OCR won't investigate trans/LGB complaints. Now they have to, so that Rule is dead on arrival. If they struggle by going to court about it, it'll only make them feel worse.

11. Q: What about the Religious Right's ongoing push for an exemption from the civil rights laws to let religious people discriminate against LGBT people?

A: The opinion takes pains to say that's still a viable legal position and the Harris opinion doesn't close that door. In fact, Gorsuch seems very encouraging about their chances. I would expect a new case to be filed by the Religious Right on the specific question of a religious expression/First Amendment exemption very soon, and I'd expect the Court in its current configuration to act favorably when that happens.

The Religious Right lost this case and federal civil rights protection has been extended to LGBT people. No doubt it will now re-group around separating people who "conscientiously object" from hoi polloi. The grounds will be that religious freedom requires that the beliefs of pious people trump nondiscrimination statutes.

At that point abortion will heave into view on the horizon. And the push will be on to use Gorsuch's opinion and the religious freedom argument to make abortion a nonfunctional option for women.