PUBLISHED:June 17, 2020

Duke Law faculty react to landmark Supreme Court decision in Bostock v. Clayton County, Ga.


Dellinger says the Supreme Court took the “easy” – and correct – path in deciding cases that extend employment discrimination protection to gay, lesbian, and transgender workers.

Duke Law faculty scholars are hailing the Supreme Court’s June 15th decision in Bostock v. Clayton County, Ga., stating that Title VII of the Civil Rights Act of 1964 prohibits employers from firing workers on the basis of sexual orientation and gender identity. They are lauding the 6-3 ruling and Justice Neil Gorsuch’s majority opinion, both for its adherence to a textual reading of the law and for the important protections it provides to gay and transgender employees.

The ruling is particularly significant for transgender persons, as it is likely the first time the Supreme Court has acknowledged and extended them any type of protection, said Jerome M. Culp Professor of Law Trina Jones.

“In a very dark moment in this country’s history, the Supreme Court today set forth a glimmer of hope,” Jones said. “This is an extraordinarily wonderful — and somewhat surprising — outcome, and it is not an understatement to say that it is a landmark ruling.

“The decision increases the possibility that the more than 8 million members of the LGBT community will be treated with the dignity and respect that people deserve in every aspect of life, and especially when they are simply trying to earn a living.”

Professor of Law Doriane Lambelet Coleman called the decision “the right result.”

“In the usual case, being gay or transgender has nothing to do with a person’s ability to do their work, and so it is wrong to make employment decisions on these grounds,” she said.

“Indeed, for too long, because people who are gay and transgender have been unable to get or keep jobs, they have been unable to sustain life’s basics — to take care of themselves and their families — simply because others were uncomfortable in their presence. The decision today makes plain that this discomfort and the economic marginalization that results are unlawful.”

While Chief Justice Roberts is increasingly regarded as a “swing vote” on matters that divide the Court ideologically, there was widespread surprise that Justice Gorsuch not only joined his liberal colleagues, but wrote the opinion. In a tweet after the decision, Douglas B. Maggs Professor Emeritus of Law Walter Dellinger noted: “One neglected possible ‘explanation’ for Roberts & Gorsuch’s votes in the LGBTQ decision is that they were convinced that was the right interpretation of the text of Title VII.”

Indeed, in an amicus brief supporting the employees in the three cases consolidated under Bostock, Dellinger and co-authors Karen Dunn, Neal Katyal, Theodore Olson, and Seth Waxman argued that to arrive at the correct decision in the three cases consolidated under Bostock, the Court simply needed to apply textualist principles to the plain language of Title VII’s ban on discrimination “because of such individual’s . . . sex.”

“These cases are simpler than they seem. The ‘cardinal principle of judicial restraint’ is that ‘if it is not necessary to decide more, it is necessary not to decide more,’” they wrote. “Statutory interpretation begins with the text and ends there when the text is unambiguous.”

They went on to argue that the fired employees must prevail under even the most narrow definition of “sex” as a binary division of males and females based on anatomical or genetic characteristics, stating that employers who discriminate on that basis rely on their beliefs about the employee’s assigned sex, and their beliefs and presumptions about that assigned sex and the employee’s gender presentation.

Jones observed that the Court did proceed on that narrow definition of “sex” as referring only to biological distinctions between male and female — and still found it to be unlawful discrimination, in the case of gay and lesbian employees, “to ‘penalize men for being attracted to men and women for being attracted to women’” and, in the case of transgender employees, to discriminate “‘against persons with one sex identified at birth and another today.’”

She said it was unclear how the ruling would affect interpretation of other federal statutes that also include the word “sex,” such as Title IX and the Fair Housing Act.

Coleman, whose recent scholarship has focused on the implications of sex, noted that the Court’s unanimous literal interpretation of the word as “the biological or reproductive classification that distinguishes males from females,” and its unanimous agreement that sex is  distinct from sexual orientation and gender identity, have important implications for other kinds of cases.

“The majority made clear that it was leaving for another day the decision on how federal law applies to decisions other than hiring and firing that were raised during oral argument and in public commentary,” she said. “Specifically, because they involve different considerations, the court expressly left for another day the lawfulness of sex-segregated bathrooms, locker rooms, dress codes and sports. The justices in the majority did not express views about how they might decide such cases.

“Academics, advocates and social media commentators on all sides of the issues in these pending cases will speculate. They’ll seek to spin the decision in Bostock so that it supports their positions. However, all that’s clear for sure is that the Court isn’t willing to read ‘sex’ in existing statutory language beyond its traditional meaning.”