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The Gorsuch Legal Alchemy
The United States Supreme Court has sent shockwaves through much of the nation with its decision in Bostock v. Clayton County. By a six-to-three vote, the Court held in no uncertain terms that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 makes it illegal to fire a person “simply” due to their sexual orientation or gender identity.
The basic statutory text of Title VII provides that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Writing for the majority, Justice Neil Gorsuch argued that his textualist approach compelled the novel conclusion that the term “sex” includes not only biological sex, but also sexual orientation and gender identity. “In the context of an unambiguous statutory text,” he wrote, “whether or not a specific application was anticipated by Congress is irrelevant.” His argument is misguided. It holds that the meaning of the term “sex” necessarily bears no relation whatsoever to the intentions of the Congress that passed the legislation or the public who endorsed it.
The dissent of Justice Samuel Alito rightly branded Gorsuch’s opinion as pure “legislation.” Congress, he pointed out, has repeatedly refused to pass legislation to ban discrimination on the basis of sexual orientation or gender identity. It is wholly implausible, then, that a sound textualist reading of the highly contentious term “sex” in the Civil Rights Act could conclude that both categories were covered by the statutory language, especially as these modern categories were well beyond Congress’ intent in 1964. Under a textualist approach, it is the original public meaning of a disputed term that carries the weight of the day—and volumes of evidence demonstrate that biological sex alone was the target of Title VII.
Gorsuch’s explicit use of textualism represents a quiet revolution in statutory construction. The 2017 decision in G. G. v. Gloucester County School Board involved an effort by the Office of Civil Rights in the Department of Education to require all high schools to treat gender identity as a covered form of discrimination under Title IX of the Civil Rights Act, which forbids educational programs receiving federal financial assistance from subjecting any person to discrimination on the basis of sex.
The Fourth Circuit upheld that decision by taking the then-fashionable view that the Supreme Court’s 1997 case of Auer v. Robbins required courts to give extreme deference to a federal agency’s interpretation of its own regulation. Ultimately, that court found that there were manifold ambiguities in the term “sex,” and accordingly supported the OCR’s determination that a school “generally must treat transgender students consistent with their gender identity.” The court mentioned intersex persons, those born with X-X-Y chromosomes, and those who lost external genitalia through accident to defend its conclusion. Thus, the Fourth Circuit used low probability events to recast the traditional binary definition of sex.
As most recently demonstrated in Kisor v. Wilkie (2019), Justice Gorsuch has long been a fierce opponent of Auer deference on the simple and powerful ground that courts should not allow an administrative agency the power to rewrite laws when the agency’s “interpretation doesn’t represent the best and fairest reading.” How ironic it is that Gorsuch’s textualist approach perpetuates, through different means, the same error in Bostock by treating his improbable rendition of the 1964 Act as its best and fairest reading.
The first error in the Gorsuch approach lies in his failure to identify a case that everyone agrees involves illegal discrimination on the basis of either sexual orientation or gender identity and violates Title VII. That situation would arise if either men or women, but not both, were excluded from employment because of either sexual orientation or gender identity—whether or not either of these categories was known in 1964.
This view should be uncontroversial because it applies traditional notions banning rules that apply to one sex but not the other to these modern cases. Justice Gorsuch seeks to do just this by looking at cases that he thinks bolster his view. But none of them achieve that goal.
Justice Gorsuch first points to Phillips v. Martin Marietta Corp. (1971), a short per curiam opinion in which the Supreme Court held that an employer violated Title VII when it refused to accept job applications “from women with pre-school-age children.” The obvious source of discrimination was that the employer would accept such applications from men with pre-school-age children. Title VII created a statutory exception to its basic rule prohibiting discrimination on the basis of sex, which allowed for sex-based discrimination (but not race-based discrimination) where the former was regarded as a “bona fide occupational qualification” (BFOQ).
In 1971, the Court remanded to the lower court to see whether or not having a special rule for women with pre-school-age children fell into that exception. This shows that Phillips was regarded as a garden variety case of sex-discrimination. Admittedly, the BFOQ claim was uncertain in 1971, but within years, as Justice Alito noted, the BFOQ was read “very narrowly” in Dothard v. Rawlinson (1977).
The same analysis also applies to Justice Gorsuch’s reliance on Oncale v. Sundowner Offshore Services (1998), which also involved a conventional case where prohibitions were placed on one sex but not the other. There the Court unanimously held that sexual harassment claims under Title VII included cases of same-sex harassment. Oncale involved a man who was sexually harassed by another man. The case clearly falls under Title VII if the assailant never chose to harass women. But if he were a person who harassed both men and women to the same degree, then there is no discrimination because of sex. But even if Title VII does not apply, the state law of assault or intentional infliction of emotional distress would cover both cases, because both turn on some illicit threat or use of force, in which any element of discrimination is wholly irrelevant.
Justice Gorsuch offers a highly novel proposition in connecting his mistaken readings of Phillips and Oncale to Bostock. “An employer who fires an individual for being homosexual or transgender,” he writes, “fires that person for traits or actions it would not have questioned in members of a different sex.” On his view, if it is fine for men to choose women as partners, then it should be fine for women to choose other women as partners as well.
In response, the employer in Bostock argued that there was no sex discrimination here because it imposed the same restrictions on men as it did on women—it would not hire either homosexuals or transgender people of either sex. That should in fact be a conclusive answer to Justice Gorsuch’s exotic claim that Bostock follows in the footsteps of Phillips and Oncale: A sex discrimination case could be made out if those prohibitions based on gender identity or sexual orientation applied either to men or women, but not both.
Justice Gorsuch offers the example where a man is fired for being insufficiently masculine and a woman is fired for being insufficiently feminine: “in both cases,” he writes, “the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.” That would be true if men could be fired for being insufficiently masculine or women for being insufficiently feminine. But once the same rule is applied to people of both sexes, the element of discrimination drops out of the case.
Justice Gorsuch’s answer to this question is wholly obscure. He starts with this premise: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.” At this point, what drives the analysis is not the initial X-Y, X-X chromosomal difference, it is that the employer who “fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex” (my emphasis)—an odd circumlocution given that there are only two sexes. But these fancy moves do not explain why the term “sex” should not be given its ordinary understanding that is closely tethered to proof of discrimination in the treatment of the two sexes, rather than differences of two people of the same sex.
To make his case, Gorsuch wanders off into an extended disquisition of “but for causation” from tort law to say that if two or more actions combined to cause a particular injury, then each actor may be held fully responsible for the injury. But he gets the tort law wrong. The very notion of “but for” causation, as I argued long ago, is hopelessly overbroad. The “but for” cause must, under the conventional legal approach, also be a substantial factor in bringing about the loss.
Gorsuch gives an example of one car running a red light and the other failing to signal, which results in an accident that would not have occurred if either had obeyed the law. But that hypothetical is a case of joint causation because both drivers are in violation of the rules of the road. No one would say that the plaintiff who complied with the rules of the road was responsible for the loss because “but for” his presence on the road the accident never would have happened.
At this point, it becomes otiose to say that the sex of every person who is the victim of some employment action makes that element a “but for” cause of the overall harm, so that on purely textual grounds the dismissal was “because of” or “on account of” sex. Sex is just a background condition of no causal significance once the element of discrimination between the sexes drops out of the equation.
Nor can this so-called textual result be justified on the supposed ground that “a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals,” as Gorsuch claims. For this proposition, Gorsuch invoked Los Angeles Dept. of Water and Power v. Manhart (1978), in which Justice John Paul Stevens held that there was sex discrimination in the-then common practice of requiring larger pension fund contributions from women than from men for the same set of annual benefits—a practice which was based on the actuarially correct grounds that women, as a whole, live longer than men.
Manhart made the common fallacy that since some women had shorter lifespans than some men, this differentiation based on aggregates was impermissible. On that view, the only way to avoid liability was to give what amounted to an inefficient cross subsidy to women. Curiously, Justice Stevens noted that Title VII would not be violated if the employer instead gave employees of both sexes the same amount of cash which they could then use to purchase insurance within the open market. Of course, at that point the standard insurance risk of adverse selection would mean that both men and women would have to pay more for any given coverage than they would under the efficient practices in use everywhere before they were invalidated under Manhart.
Clearly, there is no “evenhandedness between groups” by forcing cross-subsidies in insurance coverage. It is also clear that Manhart has absolutely nothing to do with Bostock’s strained definition of sex. The one case is about sex discrimination in financial markets under conditions of uncertainty, and the other is about the correct meaning of the term “sex.”
In all, the lesson to learn from this episode is that even the deepest commitment to textualism cannot insulate the most eminent judges who work within that tradition from major blunders.
© 2020 by the Board of Trustees of Leland Stanford Junior University.
Published in Law
I went to kissing because it was less explicit and because it’s an illlustration of the point.
Ok sodomy is not vaginal intercourse. Is vaginal intercourse what makes someone straight? Is sodomy what makes someone gay? I thought it was exclusive attraction to the same sex.
Either way, if you fire a man for either being attracted to men, but you wouldn’t fire a woman for being attracted to a man
or
if you fire a man for sodomizing a man, but you wouldn’t fire a man for sodomizing a woman
then
sex is absolutely a basis for your decision.
This is what I mean by the distinction between meaning and consequences. Gorsuch takes the 1964 meaning, even as he reasons to an application and consequence that was not intended in 1964. Changed meanings vs unintended consequences. Gorsuch acknowledges that this is an unintended consequence. That’s not his fault, that’s the lawmakers’ fault for thinking they could correct injustice by allowing other infringements of association, speech, and religion.
The better versions of originalism consider that the meaning of the text is its original public meaning, i.e. what a reasonably reasonable and informed reader would understand it to mean.
That means that authorial intentions do not create the meaning of the text, but it also means that they are a valuable clue as to the meaning of the text, since even Congresspeople can be (somewhat) reasonable and informed readers. (Great article on the subject.)
And it also means that what an author or an original reader could not possibly have understood to mean is definitely not the meaning of the text.
[Stupid unnecessary comment.]
What are you talking about? The word “sex” in that example means one’s status as male or female. And it’s an essential consideration of the decision, but not the basis of the decision.
Ok, if you want that kind of precision:
Ok, two questions:
First of all, you’re ignoring my point and changing the subject. I was answering your question about why originalists would care about intentions. I wasn’t even talking about Gorsuch at the time.
Second, I’m not aware that Gorsuch changed the meaning of any words. My concern is with the logic that gets him to his conclusion.
The fact that his conclusion would not be accepted by any reader from the time of the writing and passing of the law is a clue that Gorsuch’s argument does not represent good originalist work. But that doesn’t mean he changed the meaning of the words. Original meaning is about propositions as well as vocabulary.
It applies. Michael Paulsen, as I recall, explains this also. It was probably in this article.
I’m not out for precision. I was just noting how your “pushing” hypothetical as originally stated wasn’t really the same pattern of reasoning as Gorsuch’s reasoning which you restated in your “sex on weekends” hypothetical. Your amended “pushing hypothetical is actually adding terms.
I’d prefer to talk about the actual cases anyway. I’ve come to agree with Scott Adams that analogies are generally not helpful to get people to understand unless they already agree. We are having a difficult time understanding/communicating the real situations and spending time dialing in on hypotheticals that are not going to be perfect, probably won’t get us anywhere.
The Philips case is a good reference (which is probably why Gorsuch chose it). The reasons for discrimination were both sex and having young children. Neither condition on its own was the subject of discrimination. The employer didn’t have a problem employing people with young children as long as they were men. That is discriminating based on sex.
In the case of a gay person, the employer doesn’t have a problem employing people who have sex with men as long as they are women. That is discriminating against men in the same way as the Philips case is discriminating against women.
I’m not ignoring your point or changing the subject. Most criticism I’ve read claims that Gorsuch is changing the meaning as understood in 1964 otherwise he could not have reached the conclusion he reached. Indeed you suggest that we might look for signs of intention in cases where the meaning of the text is unclear. My point was that Gorsuch agrees with the 1964 meanings. It isn’t unclear. If the words are clear and if they produce an unintended result, originalism/textualism (as I understand the concepts) would follow the clear meaning producing the unexpected result. Do do otherwise, in this line of thought, would be legislating from the bench.
I should have said: since the words are clear and the 1964 meaning is accepted, then why would we look to the intentions of the lawmakers (assuming we could ever get to some aggregate/median approximation of the various intentions) except to make mischief in crafting a preferred outcome?
Original meaning is about propositions…. to an extent. Isn’t that extent limited by the actual words written and ratified? Unforseen and unintended applications aren’t excluded if they rely on the original meaning of the actual words too.
I’ll read that article, but isn’t that just an appeal to authority? I’ll bet that there is at least one article from a different smart gut who argues the opposite, and that the difference comes down to a subjective assessment about a fundamental assumption.
Paulsen might be right too. What I’m trying to do here is to engage people to try to explain specifically how they support the assertion that Gorsuch is changing the meaning of the words as understood in 1964 – because I agree with most that I do not want to see this law entrench any deeper than it already has. I think that as laudable as the intentions were and as necessary as some corrective was, this law has caused trouble. Perhaps more trouble than good it’s done, who knows.
You’ve lost me. What is “pushing” supposed to mean? Who’s talking about hypotheticals? I wasn’t.
And it was too the same pattern of reasoning. Why do you think it wasn’t?
You asked why originalists would care about intentions. I answered. Your response was to challenge me on some claim about Gorsuch which I had never made. That is changing the subject and ignoring my point.
Ok, but what has that to do with me?
Indeed–assuming all the logic is good.
Because it’s a clue that the logic must be wrong, inasmuch as it led to a false conclusion.
Heavens, no!
Paulsen appeals to his own argument, and I’m citing his because he does it better than I can do it offhand.
Great. But please don’t engage me about that. I have not made that critique of Gorsuch.
You offered a hypothetical about Bob and Al pushing people at work and one of them getting fired for it. In your hypothetical there was good reason to push someone and in the other pushing was a crime. In the (Philips case which highlights Gorsuch’s reasoning) there was no such extra factor. Having young children is not illegal; the only difference there was sex.
But this is why I’d rather talk about the actual cases referenced.
ok, then I’m not quite sure what your criticism of the Gorsuch opinion is. I’d be happy to consider that too. My main reason for commenting is to push back on what seems to me criticism based on abandoning a heretofore held originalism/textualism.
All I have is in my second comment on this thread.
Punching, not pushing. And it wasn’t a hypothetical. It was an argument using the same pattern as the argument I referenced in my second comment. A counterexample to an argument form, to use logic textbook terminology.
I know nothing and have said nothing about Phillips. It was the argument from my second comment, which I understand to be Gorsuch’s.
As for your “second factor”–plainly you are indeed insisting on my precision in the counterexample. I have already obliged.
The decision on the women with preschool children suffers from lack of context.
It is a pretty observable problem that women with pre-school aged children have reliability issues in the workplace. There are reasons beyond sexism that one would not want to hire women with pre-school aged kids. While some women manage to successfully invert the household, most working women are still the ones that compromise work for childcare with young kids.
In the case on men wearing skirts, there is a social and cultural expectation that men should not be wearing skirt suits to work. By the plain reading of the CRA, you can not discriminate in the hiring of men and women. It says nothing about dress codes for men and women, it says nothing about titles for men and women. Only that men and women who meet the same requirements for the job must have equal shot of getting said job.
Gorsuch’s logic is flawed somewhere because his result (where the court is supposed to PROTECT OUR CONSTITUTIONAL RIGHTS) should have given more freedom, not less. And his result is less freedom.
Yes punching. Philips is the first case Gorsuch referenced. I get what your argument was attempting, but I dont think it is the same, it has nothing to do with precision. What you’re calling a demand for precision I call pointing out how it’s not the same argument. I’m not trying to be combative.
Ok, but you’re not explaining yourself clearly.
What is your point–that in # 2 I don’t understand Gorsuch? That’s fine, and you could very easily be right about that.
Or is your point that the second argument in # 2 did not have the same pattern of reasoning as the first argument in # 2?
It did, but if you think it didn’t you are welcome to explain why you think so.
So far all you’ve done is claim that there is the difference of legality, which only means that I need to give you a more precise counterexample where this alleged difference is unambiguously not an issue. This I have done in # 34. So what’s the problem?
Moreover, you said it was not the same argument because there was an extra difference. That just means you disagreed with the premise about the “only relevant difference” in the second argument. But then–why can’t we disagree with the “only relevant difference” premise in the first argument? Isn’t that Stina’s point?
Incidentally, I don’t think the legality is an issue either; the legality is why the cops arrest Bob; there’s only one real issue. If it helps, try this version alongside the version in # 35:
Undoubtedly.
Sex (intercourse) isn’t illegal as a baseline. Punching is. Bob was arrested for punching illegally, Al was not arrested because his punching was not illegal.
Jim and Jill on the other hand, is a different pattern. In that case, there was discrimination on the basis of sex. In your second scenario you are simply incorrect that there was discrimination based on profession. There was discrimination based on legality.
Not sure where the tinge of antagonism is coming from.
The problem with #34 is that you’re still not describing it properly. The profession was not any part of the pastor’s decision. No worries for the pastor: he is free to either dislike kindergarten teachers or to just hate Bob. There is no consequence and no infringement of law in either case.
The case of Jim and Jill is different. While the boss might have had another reason for firing Jill and not firing Jim, those are facts not in evidence. Otherwise, we have an employer treating people, traits, and acts different presumably on the basis of sex.
Ok, there could be additional details in your made up example. Fine. The court cases are not like that though; for one thing there is an actual law in question and for another thing they were not ambiguous. Which is why I’d much rather discuss those in detail than made up examples. You said you’re unfamiliar with the Philips case: I encourage you to read at least the summary ion this OP.
You’ve lost me.
Which first argument are you talking about? Jim and Jill? Either way, I don’t know. Lets discuss Bostock and Philips instead. We don’t have to keep filling in blanks there.
Where do you see antagonism? I’m just doing logic here.
Maybe someday. It’s doubtful I’d have the time; there are still thousands of pages of Augustine I haven’t even read.
I’m talking about the logic of what I understand to be Gorsuch’s reasoning. That’s it. The logic is all I know at this time.
If you don’t want to talk about that, best talk to someone else.
My mistake.
The pattern is the same:
In the case of Jill and Jim the conclusion is that there was discrimination on the basis of sex, but the conclusion depends on this argument pattern.
I’ve given you three examples of arguments using the same pattern which are bad arguments.
Even if you don’t like all three, one should be enough. That’s how logic works. I can even give you a fourth that goes in the opposite direction: