What ‘Because of Sex’ Really Means

Beneath the verbal jousting, the Court expressed dueling views of sexual orientation and gender, and how society should assess them.

Justice Neil Gorsuch appears to have been serious. In his recent book, A Republic, If You Can Keep It, Gorsuch explained his twin philosophies of judging, “originalism” and “textualism”:

Rather than guess about unspoken purposes hidden in the hearts of legislators or rework the law to meet the judge’s estimation of what an “evolving” or “maturing” society should look like, an originalist and textualist will study dictionary definitions, rules of grammar, and the historical context, all to determine what the law meant to the people when their representatives adopted it.

Yesterday, Gorsuch applied his philosophies to a sticky question. Does Title VII of the Civil Rights Act of 1964, which bans employment discrimination against any individual “because of such individual’s … sex,” forbid discrimination against LGBTQ employees?

In a major victory for the gay- and transgender-rights movements, Gorsuch—writing for six members of the Court—concluded that it does: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” he wrote.

The cases, consolidated as Bostock v. Clayton County, involved two gay men and a trans woman, each of whom had been fired when their employers found out they were gay or trans. As a result of yesterday’s decision, they can now pursue Title VII claims against their employers: Employment discrimination against gay or trans people is now a violation of a landmark federal law.

Gerald Bostock was an employee of a Georgia county who was forced out of his job as a child-welfare advocate once his supervisors found out that he played in a gay men’s softball league. Donald Zarda was a skydiving instructor in New York. When he strapped himself to a female customer (for her safety), he jokingly reassured her that he was gay; he was fired immediately after. (Zarda later died in a separate jumping accident; his estate remains in the case.) Aimee Stephens was a funeral director in Michigan whose employers fired her when she wrote a letter to them declaring her intention to “live and work full-time as a woman.”

Gorsuch’s 6–3 majority decision was joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Samuel Alito wrote a lengthy dissent, which Justice Clarence Thomas joined, and Justice Brett Kavanaugh wrote a separate, solo dissent.

The majority opinion called the decision “simple but momentous.” Momentous to be sure—a sign of the social change that has raced ahead over the past three years despite the efforts of the conservative legal movement to thwart it; the decision puts the wind at the back of LGBTQ advocates in future cases. Simple, not so much. The proper textualist question in Bostock, as framed by both sides, was what because of … sex meant to the ordinary person when the statute was adopted, and what that meaning itself means today.

In his majority opinion, Gorsuch resolved that question by analyzing discrimination against LGBTQ people as discrimination “because of sex”:

It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no other reason than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague … The affected employee’s sex is a but-for cause of his discharge.

Gorsuch rehearsed a similar example involving a transgender woman fired even though cisgender women are retained: “The employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an individual identified as female at birth.”

That is the heart of Gorsuch’s opinion. “Sexual orientation” and “gender identity” are both necessarily related to sex, he wrote; when an employer uses either as a job criterion, the employer is thus penalizing employees “because of sex.”

It is, I am convinced, the correct argument, but that doesn’t mean it is actually simple. In fact, taking the opposing argument seriously sheds light on the unspoken assumptions that are fueling the culture war over LGBTQ rights. Justice Alito argued that the question at issue was whether ordinary people in 1964 would have thought that the word sex would cover sexual orientation and gender identity. To Gorsuch, that was not the relevant question—it was what the words because of sex mean, and what they meant 50 years ago. The two questions, asked in good faith, produced different answers.

All three opinions insisted that they were only analyzing the meaning of words, with no reference to the justices’ political or moral views on gay rights. But beneath the verbal jousting, the two sides were expressing dueling views of what sexual orientation and gender mean, and how society should assess them.

Both Alito and Kavanaugh insist that being gay, lesbian, or trans, is something entirely different from being male or female. Take, for example, Gorsuch’s two “materially identical” employees. To Alito, the two are not identical: “In the mind of an employer who does not want to employ individuals who are attracted to members of the same sex, those two employees are not materially identical in every way but sex.” The gay employee is, well, gay—the employer objects to sexual orientation, which, Alito argues, has nothing to do with sex, any more than does, say, the employee’s astrological sign: “If an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios.”

Kavanaugh made the same point in more sober fashion:

Few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination … In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.

Underlying both dissents, then, is this notion that being a gay man is unrelated to being a man, just the way being a Scorpio is unrelated to being a man. By this logic, sexual orientation and gender identity have nothing to do with sexual equality, which is about discrimination against women for being women or against men for being men, and nothing else.

Kavanaugh elucidated this argument with a flourish:

Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.

This claim—that these movements were distinct and based on different concepts, and thus that the two types of discrimination do not relate to each other at all—are echoed by Alito in his separate dissent. In a six-page aside, Alito’s opinion helpfully reminded the Court that, at the time the Civil Rights Act was passed, homosexuality was considered a mental disorder and gay and lesbian people were subject to brutal discrimination. To him, that proves that the statute, in 1964, could not have included sexual orientation (much less gender identity) in its sweep.

These glib arguments have two problems, and both relate to the relationship between sex discrimination and the fight for LGBTQ rights. The first is the “common parlance” issue. In 1964, in fact, women were also subject to stifling and comprehensive discrimination, and it has taken the country nearly six decades to even begin unwinding those inequities and their consequences. Nobody in 1964 thought that because of sex protected against what we now call a “hostile environment,” but the Court has since held that it does. Nobody thought that male-on-male sexual harassment was a violation of Title VII—but the Court has held that it is. Very few people thought that gender-specific “Help wanted” ads were a violation of the law, but the Court later upheld a rule against them. The term sex, by some accounts, was included in the bill amid hearty male guffaws. The “common parlance” argument thus would justify saying that because of sex in 1964 parlance didn’t mean because of, well, sex.

The second is that it is quite possible to believe—and many people who have studied the history of discrimination do argue—that Kavanaugh’s confident disquisition on history is wrong, that discrimination against women and against LGBTQ people both in fact spring from the same root of patriarchy. Discrimination against women—misogyny that belittles their physical and mental qualities—feeds into and is fed by discrimination against gay men, lesbians, and transgender people. In all cases, the dominant force of society assumes the right to dictate sexual behavior and identity; in all cases, that dominant force regards resistance as an alien insurgency to be crushed. The struggles, in this view, are the same struggle. People of this view regard identity not as a set of discrete silos—“cis,” “straight,” “trans”—that have nothing in common with one another but as more of a web, whose full interconnected dimensions we are just now beginning to explore.

If that’s right, then sexual orientation and gender identity are not at all irrelevant to sex. They are, as Gorsuch wrote, sex itself. Discrimination on either basis really is discrimination because of sex. And the attempt to detach a person’s sexual identity from his or her sex is not simply an error, but an absurdity.