Bostock v Clayton County, Georgia: [Only] One small step forward for LGBTQI+ rights
By Joshua Taylor and Alice Taylor-Kirby
Last month, the US Supreme Court handed down its decision in Bostock v Clayton County, Georgia. Hailed as ‘a triumph for both the country and the court’ and ‘a simple and profound victory for L.G.B.T. civil rights’, the decision has been widely regarded a huge step forward for LGBTIQ+ rights, and discrimination law more generally.
However, such hyperbole overstates the benefits of this judgement, and overlooks its many limitations. While the decision should rightly be considered a step forward for LGBTIQ+ groups, it should be seen as a small step, rather than a giant leap. Ultimately, while there is now protection for homosexual and trans- groups in the workplace, the decision failed to acknowledge the discrimination that homosexual and transgendered people faced or provide a coherent defense of their right to be free from discrimination, and as such failed to meaningfully move discrimination law forward. Bostock represents a failed opportunity for meaningful discrimination law reform, and reinforces the limitations of the Court as a means of providing relief for marginalized communities.
The logic behind the decision was fairly simple. The Civil Rights Act of 1964 states that discrimination must not occur on the basis of ‘race, colour, religion, sex, or national origin’. The question to be decided was whether discriminating on the basis of homosexuality or transgenderism amounted to discrimination on the basis of sex. Gorsuch, on behalf of the majority, argued that ‘the answer is clear’. Those who discriminate on the basis of homosexuality discriminate on the basis of sex because they are concerned with their sex in relation to their sexual partner. They state:
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 reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
For Gorsuch, this was a clear outcome of a textualist interpretation of the law. To make his case, he firstly asked what the term ‘sex’ and ‘discriminate’ meant in 1964. From there, he applied the words as they were written to the circumstances at hand to find his answer. The intention of the lawmakers and what they were contemplating in the legislation is not relevant; only the plain meaning of the words, as established in 1964, matter.
There are several reasons to be cautious in celebrating the logic behind this decision. Firstly, the decision relies heavily on the definition of ‘sex’ in order to justify the protection to the LGBTIQ+ community. In doing so, the decision excludes other forms of gender identity which do not rely on a binary relation to sex, for example gender fluid, asexual or non-binary identifying persons, or bi-sexual identifying persons who may be in a heterosexual presenting relationship. As such, it is unlikely that discrimination based on these characteristics would be protected under the current decision, and as importantly, serves as a form of erasure to these communities because of this exclusion.
Secondly, it should not be forgotten that at the core of this decision, homophobic and transphobic actions have not themselves been repudiated. In fact, the logic of the judgement specifically acknowledges that homophobia and transphobia have not been adjudicated upon. Gorsuch states that
We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.
This isn’t itself a criticism of the judgement – after all, this was the argument that the Plaintiffs themselves were making. However, it is a clear argument as to why this judgement is not the final victory for LGBTIQ+ advocates. At its heart, this judgement made no sweeping statement condemning homophobic or transphobic attitudes, but rather technically applied the logic of those attitudes to fit them under the umbrella of ‘sex’ discrimination. This is distinguishable from the decision in Obergefell v Hodges, where the Supreme Court made a sweeping statement legalising gay marriage under the fourteenth amendment’s due process and equal protections clauses. According to one such passage from Obergefell, the Constitution ‘extend[s] to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs’. There is no such authoritative declaration of equality of these communities for labor rights in Bostock.
One reason for this is because the decision fails to grapple with the reasons why discrimination is wrongful and deserves protection. By taking a textual approach to statutory interpretation, the Court was able to sidestep a discussion of any underlying rationale behind discrimination law, preferring instead to simply claim that the words are clear, and therefore its job was done. However, a purposive approach to interpretation would have afforded the bench the opportunity to acknowledge the scale and scope of the problem confronting the LGBTQI+ community, and acknowledge the purpose that the Civil Rights Act 1964 set out to achieve: protection for classes of people systemically marginalized in the community.
Taking this approach would also have allowed the Court to take an intersectional approach to understanding why homophobia and transphobia are inherently linked to sex. It goes further than simply a dislike for the sex of the other person in the relationship. Homo- and trans- phobia are inherently caught up in considerations of masculinity and femininity. Hatred of trans- and homosexual persons often come from specific understandings of how a ‘man’ and a ‘woman’ should look and act. As such, the intersection of sex and homophobia and transphobia goes much deeper than the court was willing to look. This had the effect of sanitizing the issue, and essentializing these communities into a narrow construction of their sexual partners, while ignoring their more complex identities.
Bostock makes clear that for the LGBTIQ+ community to truly receive comprehensive legal protection from discrimination, holistic legislative action is required. So long as the US Congress remains hostile to protection against discrimination in all areas of public life, bit-piece judicial victories are better than nothing. But advocates should not be mistaken into accepting that these are sufficient. Courts should be willing to grapple with the discriminatory purposes in the discriminating parties’’ mind and confront them head on. Ultimately however, homosexuals, transgendered persons, and gender fluid persons will not be sufficiently protected until they are acknowledged and protected with their own attributes which confirm that individuals act from prejudice against those particular features, and that they are wrongful. Until then, small, technical, essentialising steps forward will be to do.
Joshua Taylor, Masters of Laws (QUT). Lawyer, Victorian Department of Education and Training and former Conciliator, Victorian Equal Opportunity and Human Rights Commission.
Alice Taylor-Kirby, Phd (Australia National University). Lecturer, Bond University, Australia.