The Terrible Precedent Set by Bostock v. Clayton County

Disclaimer: Due to the subject matter of this article, we wish to reiterate that the author specifically disagrees with the judicial overreach and the court's textualist misinterpretation of the Civil Rights Act. Opinion Pieces do not reflect The Legal Pad Magazine's official views.

Introduction 

The 2020 Supreme Court decision in Bostock v. Clayton County significantly expanded the scope of the Civil Rights Act of 1964 by interpreting Title VII’s prohibition of sex discrimination to include sexual orientation and gender identity. While this ruling was hailed by many as a landmark victory for LGBTQ civil rights, it also raises profound concerns about judicial overreach and the proper role of courts in interpreting legislation. By broadening the definition of "sex" beyond its original intent, the Court has not only altered the legal landscape of anti-discrimination law but also set a troubling precedent that undermines the separation of powers. 

Background and Parties Involved 

The case of Bostock v. Clayton County consolidated three separate instances of workplace discrimination. Gerald L. Bostock, a child welfare advocate in Clayton County, Georgia, was fired after joining a gay recreational softball league, a move which revealed his homosexuality to community members. Donald Zarda, a flight instructor, was dismissed after disclosing his sexual orientation to a colleague. In the third case, Aimee Stephens, a transgender employee at Harris Funeral Homes, was terminated after informing her employer that she would return to work presenting as a woman. 

In each case, the plaintiffs argued that their dismissals constituted unlawful discrimination under Title VII of the Civil Rights Act, which prohibits workplace discrimination on the basis of sex. The defendants, however, contended that neither sexual orientation nor gender identity is explicitly protected under the Act, asserting that they had acted within their legal rights. 

The Central Issue 

At the heart of Bostock v. Clayton County was the question of whether Title VII’s prohibition of discrimination “on the basis of sex” extends to cover sexual orientation and gender identity. The plaintiffs claimed that their terminations were inherently discriminatory because they were rooted in societal prejudices about gender and sexual norms. The defendants, on the other hand, argued that Title VII’s protections were limited to biological sex as understood at the time of the law’s passage in 1964, and that it was not within the judiciary’s role to expand those protections without legislative action.

Lower Court Decisions 

The Eleventh Circuit ruled against Bostock, while the Second and Sixth Circuits ruled in favor of Zarda and Stephens, respectively. The cases were eventually consolidated and brought before the Supreme Court, where they were heard in 2019. 

Supreme Court Ruling

In a 6-3 decision, the Supreme Court ruled in favor of the plaintiffs, finding that Title VII’s ban on sex discrimination indeed encompasses sexual orientation and gender identity. Writing for the majority, Justice Neil Gorsuch argued that firing an individual for being gay or transgender inherently involves treating that person differently based on their sex. Gorsuch reasoned that if an employer would not fire a woman for being attracted to men but would fire a man for the same reason, the dismissal constitutes sex-based discrimination. Similarly, an employer who dismisses an employee for transitioning to a different gender is discriminating against that employee because of their sex. 

The Reasoning Behind the Majority Opinion 

Justice Gorsuch’s opinion relied heavily on the notion that sex discrimination extends to any differential treatment based on sex-related traits or behaviors. He argued that discrimination against an individual for being homosexual or transgender is fundamentally based on stereotypes about how individuals of a particular sex should behave. For instance, firing a woman for not conforming to traditional feminine norms would clearly constitute sex discrimination. By the same logic, Gorsuch contended, firing someone for their sexual orientation or gender identity is a form of sex discrimination because it involves treating them differently based on their relationship to traditional gender expectations. 

Dissenting Opinions

Justices Samuel Alito and Clarence Thomas authored one dissent, while Justice Brett Kavanaugh penned a separate dissent. In Alito’s view, the Court overstepped its bounds by expanding the meaning of "sex" beyond its original understanding in 1964. He pointed out that Congress had repeatedly rejected efforts to add sexual orientation and gender identity as protected classes under Title VII, and that this legislative history clearly demonstrated that these categories were not intended to be covered under the law. Alito warned that the majority’s decision constituted an act of judicial legislation, usurping Congress’s role in shaping public policy. 

Kavanaugh’s dissent focused on the constitutional separation of powers, arguing that it is not the judiciary’s role to make policy decisions. He maintained that the Court’s role is to interpret the law as written, not to update or expand its meaning based on contemporary values. Kavanaugh suggested that while reasonable people might disagree about whether Title VII should protect LGBTQ+ individuals, this was a question for Congress to decide, not the courts. 

Analysis and Implications 

The Supreme Court’s decision in Bostock v. Clayton County has far-reaching consequences that extend beyond the realm of employment discrimination. The ruling raises two significant concerns about judicial overreach and the potential for courts to redefine key legal terms.

First, the decision sets a dangerous precedent by allowing courts to reinterpret statutes in ways that may not align with the original intent of the legislature. By expanding the definition of "sex" in Title VII, the Court has opened the door for judges to reshape other areas of law in ways that could undermine the separation of powers. This blurring of the lines between judicial 

interpretation and legislative policymaking risks eroding public confidence in the impartiality of the courts and further politicizing the judiciary. If courts are seen as free to rewrite laws based on contemporary social values rather than adhering to their original meaning, they may lose their legitimacy as neutral arbiters of the law. 

Second, the decision creates the potential for future courts to expand other protected categories under anti-discrimination laws without congressional approval. Activist groups could use this precedent to argue that other characteristics—such as political beliefs, personal lifestyle choices, or other identities—should be protected under Title VII or similar statutes. Given the highly partisan nature of identity politics in the United States, this could lead to further political polarization and undermine the ability of Congress to address these issues through the democratic process. 

Conclusion 

While the Bostock decision seems to represent an important victory for civil rights, it raises serious concerns about the role of the judiciary in shaping public policy. By expanding the definition of "sex" in Title VII, the Supreme Court has set a precedent that could erode the separation of powers and enable future courts to engage in judicial policymaking. Ultimately, it is Congress’s responsibility to amend laws and address new social realities, not the courts. In its effort to advance equality, the Court has risked creating a precedent that may have unintended and far-reaching consequences for the balance of power in the American legal system.