When we prohibit discrimination based on sex, what does that mean? For most of us, through most of history, it means that we can’t treat a man one way and a woman another way, just because that person is a man or a woman.
Makes sense, right? Yes, if you’re an everyday thinking person. No, if you’re one of six justices on the United States Supreme Court.
How can it mean anything different? Let’s go back to the year 1964, when Congress passed the Civil Rights Act. Title VII of this Act forbids employment discrimination regarding hiring, compensation, and firing. Although it has endured several amendments, the wording in question remains the same: it forbid employment discrimination “because of an individual’s race, color, religion, sex, or national origin.”
In June of 2020, the Supreme Court issued a ruling in Bostock v. Clayton County, declaring that “sex” includes gender identity and sexual orientation. In other words, no longer can an employer fire an employee for coming out as homosexual or claiming to be something other than his or her obvious gender.
You might agree or disagree with this decision, but there are several problems with it.
First, that is not the intention of Title VII.
The word “sex” did not even appear in the language of the bill until two days before it passed in the House. Representative Howard Smith proposed the addition of the word “to prevent discrimination against another minority group, the women,”[i] and went on to describe men as the “majority sex” and women as the “minority sex.” There was no question—“sex” meant male and female.
The scary thing is that the Court even admitted this. It recognized that “this Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment,”[ii] and then proceeded to prove that “sex” in 1964 did, in fact, refer to whether a person was male or female. However, it then went on a binge of judicial gymnastics, falling over itself to come up with a way to circumvent the obvious intent of the law and include sexual orientation and gender identity.
The reasoning can be summarized as such: an employer who fires a man for having sex with another man is firing him for doing something that would not be grounds for terminating a woman—that is, having sex with a man. If he were a woman, it would be fine. So, therefore, he is being discriminated against because he is a man. Additionally, if a woman shows up at work one day claiming to be a man, that’s fine, too, because you wouldn’t fire a biological man for claiming to be a man.
I find that to be quite an ingenious way to circumvent the actual law and force your opinion on others. In the end, the justices effectively scrapped that section of Title VII and re-wrote it. That’s what we call “judicial legislation”—judges making laws from the bench. And that is blatant disregard for the Constitution.
Second, the ruling is impractical.
How far does this go? Justice Alito, in his brilliantly scathing dissent, pointed out that the Court had invited the entire judicial system to become mired for years in attempts to iron out the confusion it caused, specifically in the areas of sports, healthcare, housing, bathroom use, and religious liberty.[iii]
What should we do when an employee wants to use the locker rooms or bathrooms of the other sex? Should we allow it? If a biological man can use the women’s restroom, that would discriminate against the biological woman who wants to use the bathroom without being in the presence of the biological man. So, the Court has not only gutted the law, but reversed it.
One of the cases included in the Bostock case was R.G. & G.R. Harris Funeral Homes v. EEOC. In this case, a longtime male employee of the funeral home who was living as a transgender woman outside of work decided to also be a woman at work. Because the funeral home has a strict dress code for both men and women, he was fired. Under the the Bostock ruling, the funeral home was guilty of discrimination. As a pastor, I appreciate the high level of professionalism I find at many funeral homes. But how professional is it to have an employee bounce between being a man and a woman? Business owners should be allowed to set the standard for their own businesses, but six justices on the Supreme Court unconstitutionally stripped them of that right.
Third, this ruling has serious implications for religious liberty.
While the Court has recently strengthened the “ministerial exception” which provides protection from discrimination lawsuits under Title VII for ministers,[iv] what about the other employees? Will a church have to hire a gay custodian or genderfluid secretary? According to Alito, “compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectional message.”[v] The Supreme Court has shredded both free speech and religious freedom. So much for the First Amendment.
Additionally, what about Christians, who, in their private businesses, want to protect the privacy and reputation of their business, but can no longer do so?
This horrible and ridiculous ruling is bad enough, but what makes it even worse is that two of the more conservative justices, Gorsuch and Roberts, voted with the majority, and Gorsuch even wrote the opinion. What is the future of our country going to be like when even the conservative judges rule against what they know the law was intended to mean?
Alito ended his dissent by quoting the words of the Court itself:
“The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.”
Justice Alito’s response was short and pointed: “It is easy to utter such words. If only the Court would live by them.”[vi]
[i]. Howard Smith (VA). “Amendment offered by Mr. Smith of Virginia.” Congressional Record 110 (1964) p. 2577. (Text from: Additional Government Publications Congressional Record); Accessed: July 14, 2020.
[ii]. Bostock v. Clayton County, 590 U.S. ___ (2020), 4.
[iii]. Ibid., 590:54 (Alito’s Dissenting Opinion).
[iv]. Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020).
[v]. Bostock, 590:49 (Alito’s Dissenting Opinion)
[vi]. Ibid., 54.
