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Bostock v. Clayton County, a landmark Supreme Court decision holding that federal law prohibits employment discrimination against LGBTQ workers, was a test of Justice Neil Gorsuch’s principles. He passed.
Gorsuch is a vocal proponent of “textualism,” the belief that the meaning of a law turns on its words alone, not on the intentions of the law’s drafters. And Bostock forced Gorsuch to decide between his own conservative politics and following the broad language of a landmark civil rights law. Gorsuch didn’t simply honor his textualist approach in Bostock, he wrote the majority opinion.
In Bostock, the Court considered Title VII of the Civil Rights Act of 1964, which forbids employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Though there is little doubt that the people who drafted this law in 1964 did not believe they were enacting a ban on LGBTQ discrimination, the thrust of Gorsuch’s opinion is that the expectations of lawmakers in 1964 simply does not matter.
Only the text of Title VII matters. And, as Bostock explains at length, that text clearly prohibits employment discrimination on the basis of sexual orientation or gender identity. Gorsuch lays out why in just five crisp sentences on the first page of his majority opinion:
In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
