On June 15, by a 6–3 vote, the U.S. Supreme Court ruled in Bostock v. Clayton County that workplace discrimination based on an individual’s sexual orientation or gender identity is prohibited by Title VII of the Civil Rights Act of 1964. Katie Eyer, a professor at Rutgers Law School in Camden, is co-author of an amicus brief in the Bostock case. She has litigated and won precedent-setting court cases protecting the legal rights of LGBTQ and disabled employees. This Q&A was republished with permission from Rutgers Law School.
What led to this case being considered by the Supreme Court?
LGBTQ workers have long experienced discrimination and harassment in the workplace. Many states still lack explicit protections for LGBTQ workers, and some lower courts had held that Title VII, of the Civil Rights Act of 1964, that protects employees against discrimination based on race, color, national origin, sex, and religion, did not apply to such workers. For many workers, this meant that they could face egregious forms of discrimination and harassment at work—being physically assaulted, fired, refused employment—without any recourse. The Supreme Court’s decision in Bostock makes clear that all LGBTQ workers are indeed protected by federal employment discrimination law.
Can you explain the Court’s reasoning in the case?
In Bostock, a majority of the Supreme Court held that Title VII’s prohibition on discrimination “because of…sex” extends to discrimination against LGBTQ workers. The Court recognized that textualism, i.e., the language of the statute, compelled this conclusion, since each instance of sexual orientation and gender identity discrimination is also “because of…sex.”
Thus, as the Court recognized, a gay male employee would not have been fired for his attraction to men if he were a woman—and this is “because of…sex.” So, too, “an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female” but does not take similar action against an identical employee “who was identified female at birth” has acted “because of…sex.” The Court also held that it did not matter if Congress or the public would not have expected this result, since all groups that fall within the statute’s broad language are entitled to the law’s protection.
You co-authored an amicus brief on Bostock with the Constitutional Accountability Center. Why did you want to be on the record in this case?
The amicus brief that I co-authored in Bostock tracks the arguments I had previously made in a law review article titled Statutory Originalism and LGBT Rights. In that article, I argued that textualism required a holding in favor of LGBT employees in the Title VII cases (and that originalism did not preclude such a result). As my co-authors and I elaborated in the brief, anti-LGBTQ discrimination is necessarily “because of…sex” in that it would not have happened “but for” the employee’s sex. Moreover, the fact that specific applications of the law might not have been anticipated at the time Title VII was passed is not a reason to ignore its clear text.
This ruling comes after Trump’s announcement last weekend revoking health protections for transgender people. What is the significance of this Supreme Court ruling?
The Trump administration’s revocation of health protections for transgender people was based on its conclusion that Section 1557 of the Affordable Care Act does not offer protections against anti-transgender discrimination. The Court’s reasoning in Bostock makes clear that this interpretation is almost certainly incorrect. Although the language of Section 1557 is slightly different than Title VII (prohibiting discrimination “on the ground” of sex as opposed to “because of” sex), the Supreme Court has generally treated causation language of this kind identically. Thus, Bostock’s textualist reasoning makes clear that anti-LGBTQ healthcare discrimination should likely be deemed “on the ground” of sex under Section 1557 and thus unlawful.
Many of your fellow legal scholars are saying on Twitter that your writings, including your brief and your paper, Statutory Originalism and LGBT Rights, are the foundation for legal strategy in the case, and that your brief guided Justice Neil Gorsuch in writing his opinion. How does it feel to do something so impactful?
I am immensely humbled and gratified to have some of the Supreme Court advocates and others pointing to my work as influential in the opinion. However, the reality is that an enormous number of people, over a span of many years, played critical roles in getting us to the decision in Bostock. While I hope that my own work played some role in helping to achieve the outcome, I am acutely aware that this was the result of innumerable advocates—both in and outside of the courts—helping to develop the legal reasoning, laying the groundwork for the decision, and then making the arguments persuasively to the Court.
How did this issue win over conservatives, including John Roberts and Neil Gorsuch?
Justice Gorsuch is a committed textualist, and the textualist arguments in this case were very strong. I have believed from the outset that textualists like Justices Gorsuch and Kavanaugh were the most likely fifth vote in favor of the LGBTQ position as a result. As the opinions of the late Justice Antonin Scalia demonstrate, methodological commitments sometimes do meaningfully influence the Justices, especially in the statutory interpretation context. This case is further evidence of that, and is important for that reason as well.
Will the Bostock ruling bring about additional protections for gay and transgender people soon?
The decision in Bostock is likely to pave the way for the LGBTQ community to obtain protections across a host of contexts beyond employment, under other existing sex discrimination protections. This is likely to include health care discrimination protections under the Affordable Care Act, and could also include a host of other protections, like housing discrimination under the Fair Housing Act, discrimination in schools under Title IX, and others. I hope that after Bostock, all employers will now take seriously their obligations to make their workplaces welcoming and non-discriminatory environments for LGBTQ employees. Although the experiences of other protected groups makes clear that formal protections will not eradicate discrimination in the workplace, this is an important step forward.Click here to leave a comment