What ‘Because of Sex’ Really Means

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.