On June 18, the Supreme Court ruled that a Tennessee law banning dangerous “gender-affirming care” for minors did not violate the Equal Protection Clause of the 14th Amendment. Skrmetti should be applauded as a victory for restoring sanity and protecting children from barbaric procedures. However, a specter looms over the Court’s jurisprudence on sex and gender that has the potential to wreak havoc.
The infamous “textualist decision”—Bostock v. Clayton County—looms over each Court case related to sexual orientation and civil rights. While the Court rejected Bostock’s logic in this instance, the Supreme Court needs to do the right thing and overturn that case.
Much ink has been spilled regarding Bostock’s holding.
In a confounding majority opinion, Justice Neil Gorsuch declared that the legislators behind Title VII of the 1964 Civil Rights Act understood the word “sex” to include sexual orientation. Gorsuch attempted to revise history by arguing that “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Title VII needed to be amended to reflect this fact.
The real salt in the wound was Gorsuch’s attempt to posit the decision as a victory for the originalist school of interpretation. But as Justice Samuel Alito wrote, it represented “the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
Alito’s dissent compared the majority to a pirate ship—sailing “under a textualist flag” while representing the judicial philosophy disdained by textualists. The “illogical” and “arrogant” opinion could not survive its logic.
Alito wrote:
The Court argues that an applicant could not answer the question whether he or she is homosexual without knowing something about sex… Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot reject an applicant based on homosexuality without knowing the applicant’s sex.
In addition to the “textualist” decision, Alito also raised concerns regarding the application of Bostock. Specifically, Alito warned, “the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.” Gorsuch arrogantly dismissed this reasoning, stating, “We have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”
Gorsuch could not have been more wrong, as his small gesture had “unexpected consequences.” A couple of months later, the Biden Administration issued an Executive Order preventing LGBTQ+ discrimination, which directly cited Bostock. The Executive Order sought to “prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” Thankfully, President Trump rescinded the Order on his first day in office.
Those consequences continued, however, as many religious institutions are facing discrimination suits, empowered by the Bostock decision.
For instance, Liberty University, a Christian university, is being sued for discrimination for the termination of a transgender employee. Liberty Counsel wrote that the university’s decision was rooted in its sincerely held religious beliefs, and “Title VII’s text exempts that religious decision from employment discrimination suits.” However, the federal judge refused to dismiss the lawsuit, citing Bostock as part of the reasoning. Despite the supposed protections for religious institutions under doctrines such as the “ministerial exception,” the Court will likely have to readdress the underlying logic of Bostock.
Thankfully, in Skrmetti, the Court refused to expand the logic of Bostock outside of Title VII. Roberts, for the majority, wrote that since the Tennessee law did not “exclude any individuals on the basis of transgender status,” but rather age and medical use, Bostock was inapplicable.
Additionally, Justice Clarence Thomas reaffirmed his disdain for the infamous opinion. Thomas wrote that Bostock’s majority opinion “fails on its own terms,” and applying Bostock to this issue “would depart dramatically from this Court’s Equal Protection Clause jurisprudence” so the “courts need not engage Bostock at all.”
The larger problem reveals itself within these opinions. The Court is dealing with a precedent that conflates “because of sex” with one’s sexual orientation and gender identity. If the makeup of the Court were a little different, Bostock’s logic would probably have been extended outside of Title VII.
The Skrmetti decision was not just a victory for common sense but also for proper judicial interpretation. However, the victory does not mean that America is out of the woods yet. The Court has, unfortunately, been the primary source of many of America’s political problems. Whether it is redefining marriage, writing what is ostensibly poetry in Planned Parenthood v. Casey, or rewriting statutes, the Court has transformed from a bench of watchful guardians into unaccountable legislators.
The Court must overturn Bostock. Just as the late Antonin Scalia called the Lemon test a “ghoul in a late-night horror movie,” Bostock haunts the Court’s jurisprudence on sexual orientation and gender. It’s time for the Court to send Bostock to the ash heap of history.
This article was originally published on Crisis Magazine.
