This post was originally published at Jacobin.
Last Monday, the Supreme Court ruled that employment discrimination on the basis of sexual orientation or gender identity is prohibited by Title VII of the Civil Rights Act of 1964. The decision brings employment law in line with public opinion: a majority of Americans favor employment protections for LGBT people, and in 2015 the Harris Poll revealed that nearly a quarter of Americans believed that these protections were already enshrined in federal law.
The opinion, like today’s DACA decision, came as a shock to legal observers. The Supreme Court is a deeply conservative institution, currently occupied by five solidly conservative justices. It seemed beyond hope to imagine that a majority would deliver the “landmark ruling” they did, even though advocates stood on extremely solid legal ground: they persuasively applied conservative methods of statutory interpretation to Title VII.
The surprise decision has been met with much enthusiasm, and some skepticism, from supporters of LGBT justice. Make no mistake: the opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, could have been much better. It should have included language linking the LGBT movement to the broader federal civil rights framework, acknowledging the history of discrimination against LGBT people. Instead, we got a skeletal affirmation, that in formalist textual terms, means sexual orientation– and gender identity–based discrimination qualify as discrimination “because of sex.” (Courts have already ruled that the law prohibits discrimination on the basis of sexual stereotypes, but Justice Gorsuch reasoned from the meaning of the words “because of sex,” and found that discrimination against gay, lesbian, and transgender individuals is always rooted in bias about sex.)
But this is still a victory worth celebrating.
While it would be foolish to pretend that this one spare Supreme Court decision will transform employment conditions for LGBT workers, I want to examine three varieties of criticism in turn, to suggest that there are important reasons to praise the outcome even if we’re skeptical about the role of law in radical change.
First, scholars, commentators, and activists — myself included — have long criticized the development of LGBT law for predicating state recognition on consolidated, discrete identity categories. Why would we embrace legal regimes that make our lives more visible to a state that has acted as a vicious gatekeeper, discriminator, and perpetrator of violence against LGBT people? Especially given the contortions they require to fit varieties of sexual and gender experience into legible categories. By relying on arguments that LGBT people are “born this way,” into clearly delimited identity groups, legal protection comes with the high price of taming our non-normativity and erasing our real diversity.
What’s remarkable about the decision in Bostock is that it is not predicated on whether LGBT people are “born this way,” and may even provide a path away from those kinds of claims. In the dispute over gender identity, it seemed possible in the briefing and oral argument that the outcome would depend on which definition of “sex” the Court adopted.
Instead, the majority opinion declares that “nothing in our approach to these cases turns on the outcome” of the debate over defining sex. (Thanks to Rachel Luban for pointing this out to me.) It goes on to say that even under the definition of sex favored by the employers, sex assigned at birth, discrimination against someone based on their gender identity is inextricable from discrimination on the basis of sex.
How do we know what’s inextricable from sex discrimination? The opinion looks at three examples of how Title VII has been interpreted in the past to find that sexual orientation and gender identity fall under the umbrella. These cases concerned 1) discrimination on the basis of motherhood; 2) discrimination on the basis of life expectancy; and 3) sexual harassment of a male employee by other men. In each of these scenarios, the identity of the litigant was different, but the ultimate source of discrimination or harassment was the same.
Analogizing from these scenarios presents a radical possibility for reconceptualizing the fight to end discrimination at work. Constitutional litigation for civil rights, especially under the Equal Protection Clause, requires litigants to base their claims on more stable identity categories like black and white for race, or man and woman for sex.
By bypassing a definition of sex altogether, this decision opens up horizons for multi-identity organizing to end employment discrimination based on sex. It says that you don’t have to be a certain kind of person to qualify for Title VII protections, you must have suffered a particular kind of harm.
This logic invites new coalitions to form around a shared basis of oppression rather than shared identities (including cis, trans, non-binary, fluid, gay, bi, pan, straight — everyone!).
Of course, moving away from identity-based claims is easier theorized than done. The second line of criticism says, fine, this could open up new kinds of legal claims, but why should we count on a liberal legal system to deliver gender and sexual liberation? It is absolutely true, as many have pointed out, that very few instances of workplace discrimination make it to court, that workers are increasingly barred from bringing these kinds of suits by arbitration agreements, and that under the at-will employment rules that govern most US workplaces, you can get fired for just about any reason. Being an employee still sucks, even if it’s illegal to be terminated for a slightly broader set of reasons.
No one thinks that Bostock is going to situate antidiscrimination law within a pantheon of LGBT rights and worker powers. It can, however, be part of existing mobilizations moving in that direction. One of the lessons of US legal history is that any particular legal outcome is radically indeterminate at the moment of enactment; legal meaning is made in the collision between legal decisions and historical context. Sometimes small legal decisions have had radical consequences in the world; sometimes dramatic legal leaps have foundered on contact.
This decision arrives at a moment of unprecedented uprisings for racial justice, including loud and explicit calls to end rampant violence against black trans people. It is also a moment of radical labor activism, where nonunion labor is organizing, and campaigns for industry-wide organizing might stand a chance. These movements can claim Bostock as their own, linking its affirmation of antidiscrimination principles with racial justice and worker power. (Though they’ll have to act fast — conflicts over religious objections to antidiscrimination law are already percolating in courts throughout the country, and the Supreme Court has agreed to hear one next term.)
The final criticism of Bostock is that antidiscrimination law is a sideshow to the main event, which is to transform material conditions for LGBT people by guaranteeing their basic needs are met. Although antidiscrimination law is not the most direct route, decisions like Bostock make those redistributive projects and forms of material support easier for LGBT people to get. The definitions in Title VII radiate deeply into both the federal bureaucracy and state administrative agencies throughout the country, touching education, health care, and housing.
As a host of legal experts have already summarized, the decision is likely to thwart the Trump administration’s recent attempts to exempt LGBT people from nondiscrimination protections in the Affordable Care Act and other health laws. Or to take another example, the interpretation of “because of sex” in Title VII is often directly imported to Title IX, which ensures sex equity in federally funded education. And you don’t have to take my word for it: in his dissent, Justice Samuel Alito included a list of federal statutes affected by Monday’s ruling that stretched over fifteen pages.
There’s a lot that this decision didn’t do. It could have relied on precedents that ruled sex stereotyping illegal under Title VII, rather than on textualism. It could have connected LGBT civil rights into the broader federal framework, and recognized the decades of activist and legal struggles for sexual and gender justice. It would be foolish to rest our hopes for redemption on the federal judiciary.
But the amount of work to be done should not obscure the enormity of this decision. Queer and trans activists and lawyers have been fighting for workplace equality for decades. In a moment when the feedback loops between mass militancy, formal politics, and judicial change are spinning at record clip, we should celebrate this victory — and add it to our tool kit in the pursuit of a better world.
