It’s been a week since the Supreme Court handed down a powerful and important decision recognizing protections for the civil rights of Americans regardless of their sexual orientation, gender identity or other status not previously recognized. What we’ve seen in that week is commentary criticizing the decision and commentary supportive of it. But what has been lacking is a full assessment of the logic that powered the decision and will likely now drive other needed changes.
In Bostock v. Clayton County, Justice Neil Gorsuch — appointed by President Donald Trump – wrote the controlling opinion. It can be deceptively hard to boil down a complex legal opinion to a few words, but in essence here’s the logic that led Gorsuch to his conclusion: A person’s gender is intertwined in the issue of sexual orientation and identity.
For example, if a man is fired because he is interested in dating other men but a woman interested in dating men would not be, then the man in this example is being discriminated against because he’s a man. Therefore, Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, applies to a larger community than previously recognized.
The immediate implication of this is that employers can no longer legally discriminate against LGBTQ people in the workplace. That should be recognized for what it is, long-awaited progress that natural rights that should have always been protected now have the protection of law.
What’s more, there are additional implications of this decision that will now either be implemented as a matter of policy or end up in cases before the courts. Most notably is a change — that will almost certainly be reversed — that the Trump administration made to undercut such rights just days before this ruling was issued. The administration changed a rule implemented in the last year of the Obama presidency that extended civil rights protections in health care for the LGBTQ community.
Essentially, the Obama rule said Title VII protections extend to LGBTQ people in government health programs and any health organization that accepts federal funds. The rule was designed to curb discrimination in decisions regarding providing care, and it’s impossible now to see how the Trump administration can sustain its rollback of that rule. The Gorsuch opinion has stripped away even the technical legal arguments that had protected discrimination for too long, and we should all expect and demand that courts in the future recognized the logic and moral power of that opinion in protecting these rights.
The vulnerability to these rights, of course, is that Supreme Court’s ruling recognizes a statutory right, not a constitutional one. Title VII is a law passed by Congress and therefore could be revised by Congress. So if the administration wants to persist in its intent to discriminate, it could try getting a new law through Congress. We doubt such an effort could succeed, but everyone who believes in the protection of individual rights should be prepared to fight any such discriminatory effort until it is soundly defeated.