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Katie Eyer is a professor of law at Rutgers Law School. She co-authored an amicus brief on behalf of scholars of statutory interpretation and equality law arguing that textualism required a finding in favor of LGBTQ employees.

Title VII has prohibited discrimination because of sex since 1964and yet many lower courts have long held that employers are free to discriminate against LGBTQ employees. Yesterday, the Supreme Court held that anti-LGBTQ discrimination is indeed because of sex under Title VII in the consolidated cases of Bostock v. Clayton County, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC. This rulingwhich has enormous implications for equality for LGBTQ workersalso makes clear why progressive textualism, i.e., progressive arguments for the centrality of legal text, is important for the future of equality change.

Before addressing the wider implications of the Bostock decision, it is important to observe how enormously significant the decision is for LGBTQ employees, who remain without explicit protections against discrimination in many states. For many employees, especially in the transgender community, this has meant that employment discrimination continues to be a lived reality, deeply disrupting personal and professional lives. As the many who have lost their jobs in the recent COVID crisis can attest, it is no small thing to be deprived of your source of income, and thus the ability to support yourself and your family. For many LGBTQ workers, this has continued to be a real risk of their working lives, and too often a lived reality.

In a 6-3 opinion by Justice Neil Gorsuch, Bostock makes clear that LGBTQ workers are indeed already entitled to federal employment discrimination protections, despite the long history of discrimination against them (and some lower court judges conclusion that such discrimination is lawful). Title VII prohibits employers from fail[ing] or refus[ing] to hire or discharg[ing] any individual because of such individuals sex. As the majority opinion recognizes, this language required an outcome in favor of LGBTQ rights. Because it is impossible to discriminate against an LGBTQ employee without such discrimination also being because of sex, anti-LGBTQ discrimination is prohibited.

As the majority opinion further elaborates, the reasoning behind this conclusion is straightforward. The Supreme Court has already held, as a matter of textualism, that because of connotes but-for causationmeaning that an employer has acted because of sex whenever that action would not have occurred but for the employees sex. And in each and every case of anti-LGBTQ discrimination, the employees sex is a but-for cause of the adverse action taken against them. Thus, Susan, a lesbian, would not have been fired for her attraction to women if she were Mark, a cisgender man. Similarly, John, a transgender man who is fired for claiming a male identity and having a male appearance, would not have been fired if he, like Mark, had been assigned the male sex at birth.

Gorsuchs opinion for the majority embraces this straightforward textualist logic, and rejects the numerous contra-textual arguments that were offered by the employers and the government in Bostock. As Gorsuch writes:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters imagination supply no reason to ignore the laws demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, its no contest. Only the written word is the law, and all persons are entitled to its benefit.

This reasoning, written by a conservative justice in service of an opinion recognizing historic equality rights, is important to note. Although textualism has often been viewed as a tool of conservative legal advocacy, it need not and ought not be viewed that way. As organizations like the Constitutional Accountability Center and other scholars and activists have recognized, textualism is not an inherently ideological methodology, only serving conservative aims. Rather, there are many reasons for progressives, like conservatives, to celebrate a methodology that places limits on the ability of biases and individual beliefs to infect judicial decision-making. Indeed, as the Bostock opinion notes, textualism properly understood can serve as a bulwark against the exclusion of politically unpopular groups from the laws protections.

Thus, for example, as Gorsuchs opinion observes, the public (and Congress) in 1964 surely would not have believed that LGBTQ peoplewho were at that time a highly stigmatized minoritywere covered by Title VII. But as the opinion further notes, this is irrelevant if LGBTQ people are included within Title VIIs broad textual protections (although it would not be irrelevant under an approach that prioritized congressional intent). So too, past textualist opinions by the late Justice Antonin Scalia and others have rejected the exclusion of stigmatized groups like prisoners from the protections of expansive rights lawseven though a more purposivist approach might lead to a contrary result. Thus, although text may constrain legal outcomes in ways that progressives disagree with, so too it can at times ensure that, as the Bostock majority puts it, all persons are entitled to the benefit of the laws terms.

There are important stakes to progressives willingness (or unwillingness) to fully embrace textualism as an interpretative approach. As the dissents in Bostock make clear, control over the very meaning of textualism is a part of those stakes. Both textualism and originalism can be infinitely malleable when only one side of the argument claims the authority to define their contours. This is most strikingly evident in Justice Brett Kavanaughs dissent, which ignores the Supreme Courts own pronouncements (made by the conservative wing of the court) that the ordinary meaning of because of in Title VII is and was but-for causationpronouncements that all but compelled the outcome for the employees here. Instead, Kavanaugh suggests that the court should look to the public and Congress beliefs about expected applications as the barometer of ordinary meaningan approach that bears an uncanny resemblance to long-discredited uses of congressional expectations to contravene text. But his dissent nevertheless unfailingly claims the mantle of real textualism. Without the counterweight of progressive textualist arguments, it seems possible, indeed likely, that a nominally textualist argument like Kavanaughs would have carried the daydespite the fact that that his arguments contradicted prior conservative textualist precedents.

But as Bostock demonstrates, progressives have the ability and the opportunity to reclaim the other side of the debate. As Justice Elena Kagan famously put it in describing Scalias influence, [w]ere all textualists now. That pronouncement ought not signal a defeat for progressive approaches to statutory interpretation. Rather, the rise of textualism offers powerful opportunities for progressive lawyers, scholars and judges to think about the relationship of text to law and the ways that text safeguards the most vulnerable among us.

And those opportunities will be needed in the years ahead. As the racial-justice context vividly illustrates, winning formal legal protectionsin Bostock or indeed in any contextis no guarantee of equality on the ground. The victory of LGBTQ rights in Bostocka very important step forwardwill not translate seamlessly into lived equality for LGBTQ individuals, or for anyone else. Although there will be many fronts in the continuing equality strugglesfor LGBTQ workers, for black and brown victims of police violence, for disabled students denied educational equality, for women subjected to harassment and violencethe law will surely continue to be one. And in those legal struggles, textualism will afford an important tool.

For a vivid reminder of the importance of textualism as a tool, one need look no further than Justice Clarence Thomas dissent from denial of certiorari in Baxter v. Bracey, the same day that Bostock was decided. Even as Black Lives Matters protests continue to grow around the country, Thomas, no wild-eyed liberal, calls in Baxter for the limitation of qualified immunity [b]ecause [it] appears to stray from the statutory text of 42 U.S.C. 1983. The abolition or limitation of qualified immunity, a doctrine that continues to allow many cases of police brutality against black and brown citizens, some of them also LGBTQ, to be dismissed on technical grounds, is surely an important, though radically incomplete, step toward lived equality.

So too, as scholars like Sandra Sperino have shown, many of the doctrines that allow judges to regularly dismiss the statutory discrimination claims of all groupsblack and brown workers, religious minorities, women, people with disabilities, LGBTQ employeesare completely untethered from the statutory text. For that reason, some conservative judges (including then-Judge Gorsuch), have argued for at least some such doctrines abandonment. There are thus reasons to believe that if we want employees of any kind to have access to meaningful discrimination claims, progressive textualism will be important.

The law in the courts is of course only one tool of equality change. Protest, social change, legislative and administrative reform are all no doubt at least as useful for securing the lived reality of equality. But for that part of the work of equality change that will continue to take place within the courts, Bostock serves as a crucial reminder: Progressive textualism is important.

Posted in Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Featured, Symposium on the court's ruling in Bostock v. Clayton County and Harris Funeral Homes v. EEOC

Recommended Citation: Katie Eyer, Symposium: Progressive textualism and LGBTQ rights, SCOTUSblog (Jun. 16, 2020, 10:23 AM), https://www.scotusblog.com/2020/06/symposium-progressive-textualism-and-lgbtq-rights/

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Symposium: Progressive textualism and LGBTQ rights - SCOTUSblog