Bostock v. Clayton County, Explained

Yesterday the United States Supreme Court ruled that homosexual and transgender people are protected from discrimination under Title VII of the 1964 Civil Rights Act. Many did not expect this result given the Court’s conservative majority. The crux of the issue in Bostock and the companion cases was whether Title VII’s prohibition against discrimination on the basis of sex covers sexual orientation and gender identity. (Although there has been much discussion in the popular press about the use and meaning of the word “sex” in the statute, the Court gave that word its ordinary meaning circa 1964: status as either male or female as determined by reproductive biology.) What surprises me the most about yesterday’s decisions is that the Court’s reasoning is not the reasoning the plaintiffs had urged it to adopt. In fact, the rulings are so laughably simple that I have to wonder if anyone saw this coming.

The employers in yesterday’s cases admitted that they fired the plaintiffs because of sexual orientation or transgender status. They simply argued that Title VII does not forbid their actions.

Plaintiffs were trying to extend reasoning first adopted in Price Waterhouse v. Hopkins. Ann Hopkins was an associate at Price Waterhouse who was denied partnership despite having an exemplary work history and a substantial book of business. When she asked male partners the reasons for their decision, they explained that it had nothing to do with her work. She was too aggressive, didn’t act feminine enough, and didn’t dress or style her hair the way they believed a woman should. She sued. Price Waterhouse contended that it could not be guilty of sex discrimination because it had made partners of other women who conformed to their expectations.

Hopkins won. She successfully argued that an employer discriminates on the basis of sex if it conditions employment on conformance to standards of appearance or conduct that are based on gender stereotypes. Thus, it didn’t matter that Price Waterhouse elevated other women to partnership. What mattered was that a woman would only be considered for partnership if she was the “right kind” of woman, and the employer’s notion of what constituted the “right kind” of woman was based on sexist stereotypes.

The plaintiffs in yesterday’s cases were trying to extend the reasoning of Hopkins. They claimed they were fired because they weren’t the “right kind” of men and women as defined by stereotypical ideas about gender norms, and thus could seek redress under Title VII even though the law wasn’t specifically written to cover homosexuality and transgender.

The Court didn’t bite. It declined to address gender stereotypes or the changing perceptions of gay and transgender people. In fact, in a certain sense it didn’t address the rights of gay and transgender people at all. Instead, the Court reasoned as follows: Employees A and B are both attracted to women. Employee A is a man; he can stay. Employee B is a woman; she’s fired. The only distinction between A and B is their sex. It’s okay for A to be attracted to women because he’s a man. It isn’t okay for B because she’s a woman. That’s discrimination on the basis of sex. Boom, we’re done.

The same reasoning applies to transgender employees. Behavior that is tolerated in one employee because she was born female is not tolerated in another because she was born male. That distinction—sex—is the basis for distinguishing between them. That’s sex discrimination. Boom, we’re done.

There’s a sense in which the simplicity of this argument is brilliant. It is simply beyond argument that the defendant employers tolerated behavior in other employees that they did not tolerate in the plaintiffs, and the reason for the disparate treatment is the sex of the employees. The logic of the decisions is unassailable.

But it’s also narrow. The Court made no broad declarations about the rights of gay and transgender people. It did not find that they have been subject to a history of invidious discrimination. Thus, it did not define them as a protected class such that constitutional claims under the Due Process or Equal Protection clauses of the Fourteenth Amendment will receive special attention. In fact, it did not decide any constitutional claims at all. Yesterday’s cases were brought under a federal statute. Congress can amend that statute if it pleases, although it probably won’t. The Court did not find that Congress intended Title VII to cover gay and transgender people. It did not find that the needs of gay or transgender employees must be accommodated in any way that does not involve disparate treatment on the basis of sex. For this reason, yesterday’s rulings are a significant victory for gay and transgender people. But it is an incomplete victory, and it does not represent full equality under the law.

California Dreamin’

Chutzpah, goes the old saying, may be defined by the example of the young man who murders his parents and then begs the court for mercy on the grounds that he’s an orphan. Today, Republicans are redefining chutzpah by referring to their defense of Brett Kavanaugh as their “Atticus Finch moment.” Senator Tom Cornyn of Texas said this on the Senate floor today:

Some commentators have called this our Atticus Finch moment, recalling the famous novel “To Kill a Mockingbird” by Harper Lee. We all remember that Atticus Finch was a lawyer who did not believe that a mere accusation was synonymous with guilt. He represented an unpopular person who many people presumed was guilty of a heinous crime because of his race and his race alone. We could learn from Atticus Finch now, during this time when there has been such a vicious and unrelenting attack on the integrity and good name of this nominee.

Sigh. Where to start?

We could start by noting the irony of this statement coming from the representative of a state that, in Atticus Finch’s time, would have been more likely to lynch him than to applaud his courage. We could point out that Finch defended his client by conducting a thorough investigation of the allegations of wrongdoing against him—not by first denying, then limiting, an investigation into such allegations, as Republicans have done. We could expound upon the fact that Atticus Finch began with an open mind and followed the facts to a logical conclusion—rather than beginning from a conclusion and disregarding evidence to the contrary, as Republicans have done. And we could note the audacity—the chutzpah—of self-congratulatory comparisons between a fighter for the powerless and despised and defenders of the powerful and privileged.

But let’s not. You either see all that, and are sickened by the chutzpah, or you don’t. And if you don’t, you’ve already stopped reading.

Instead, let’s just take a moment to ponder whether this is really Republicans’ “Atticus Finch moment”—or whether it’s more likely to be their California catastrophe.

It’s hard to remember now, but once upon a time California was a purple state. We gave the nation Richard Nixon and Ronald Reagan, after all. From the 1960’s onward, the line of governors went like this: Pat Brown (D), Reagan (R), Jerry Brown (D), George Deukmejian (R), Pete Wilson (R), Gray Davis (D), Arnold Schwarzenegger (R, sort of), Jerry Brown (D). That’s a pretty mixed bag. But now California is solidly blue. Every statewide elected official is a Democrat, and that’s been true for a while. Republicans now have such trouble fielding credible statewide candidates that their best bets are self-funded nonpoliticians such as Schwarzenegger, Meg Whitman, and Carly Fiorina.

What happened?

Proposition 187 happened.

(Trigger warning: lawyer humor.) The proposition was appropriately numbered. It killed the state Republican Party.

(California Penal Code section 187 describes the crime of, and punishment for, murder. Sorry, I couldn’t resist.)

Proposition 187 was a 1994 ballot initiative to establish a state-run citizenship screening system and prohibit illegal immigrants from using non-emergency health care, public education, and other state services. Voters passed it into law. It was challenged in court and found unconstitutional by a federal district court. Nevertheless, conservatives were thrilled by its passage. It meant that the conservative view of illegal immigration represented the majority of voters, right? Republicans would henceforth be able to win at the polls by being tough on immigration and by sponsoring ballot measures designed to divide Democrats on the issue, right?

They certainly thought so. Flushed with victory, Republicans sponsored two more anti-immigrant ballot measures: Proposition 209 in 1996, which ended affirmative action at governmental institutions, and Proposition 227 in 1998, which sharply curtailed bilingual education in public schools. Both measures passed. Conservatism was ascendant in California, right?

Wrong. Numerous studies have shown that the long-term effect of these racially divisive propositions has been to shift Latino support away from the Republican Party and toward the Democratic Party. As California has become more Latino, it has also become more Democratic. For the sake of short-term victory, the Republican Party sacrificed long-term viability, to the point that it has become almost irrelevant in statewide politics.

The moral of the story is pretty simple: If you act as if you don’t give a rat’s butt about people, you don’t get to complain when they believe you. Tell them enough times that they don’t matter, and they’ll vote for people who tell them they do.

Women understand what’s happening with the Kavanaugh hearings. They’re not fooled. They understand that Kavanaugh’s conduct toward women in his youth, and even more so his view of that conduct now, is an important issue. But they are even more keenly aware that Senate Republicans believe it is not important, regardless of the truth or falsity of the allegations against him. Women understand that, while Republicans may say they don’t believe Christine Blasey Ford and other women who have described misconduct by Kavanaugh, in reality they don’t care whether those claims are true. They didn’t want to investigate these claims because the outcome of an investigation didn’t matter to them. They didn’t call relevant witnesses to testify before the Judiciary Committee because they didn’t care what those witnesses might say. When Republicans were shamed into allowing an investigation, they limited its scope because the integrity of the investigation doesn’t matter to them. Women get this.

Tell women enough times that they don’t matter, and they’ll vote for . . . well, we’ll see. Women are not a monolithic voting bloc; they vote against their own interests as often as anyone else in this country. They’re no more intelligent or virtuous than men. But you can only show overt disdain for people so many times before they realize you’re not on their side. Denigrate them long enough, and they’ll find new friends. It happened with Latinos in California. It may yet happen nationwide with women.

So, friends, do not despair as Senate Republicans adopt the mantle of a fictitious civil-rights hero to justify their ill-treatment of women. While they talk about their “Atticus Finch moment,” the rest of us are California dreamin.’