Opinion: Justice Gorsuch's LGBTQ ruling isn't a victory for the left
Contrary to the opinions of popular conservative commentators, Supreme Court Justice Neil Gorsuch’s Title VII ruling is not an overwhelming progressive victory. Rather, Gorsuch’s approach preserves the integrity of the written law and the analysis employed in prior decisions. The opinion has laid down a very limited framework that denies LGBTQ individuals the same level of protection that would be extended to cases involving racial discrimination.
Rightists accused Gorsuch of political treason after he wrote the majority opinion in a case that extended anti-discrimination protections to LGBTQ employees. From a legal perspective, however, Gorsuch’s opinion is neither contrary to a conservative philosophy of legal interpretation nor fully satisfying to a leftist agenda.
Justices are traditionally constrained to applying the law as it has been written by the Legislature and as it has been interpreted by the justices of yore. The very essence of a conservative justice is one who respects these two basic principles.
In his analysis of Bostock v. Clayton County, Gorsuch displays this conservatism by resting his decision on the way in which the plain, objective text of Title VII has been interpreted by prior Supreme Court cases. These prior decisions developed the “but for” test to determine whether a claim of discrimination had merit. This test is something like a legal measuring stick that asks “would two otherwise equal individuals be treated differently for doing the same thing but for their race, color, religion, sex, or national origin?”
As Gorsuch explains while employing the test on page 11 of his opinion, an employer who would fire a biological male for being in a relationship with a biological male would most likely not fire the same employee, for the same behavior, had he been a biological female. Therefore, Title VII protections against sex discrimination apply in the case of LGBTQ employees. Gorsuch’s limited interpretation of the law has actually disappointed some leftist academics because they did not feel it went far enough.
By extending protections to LGBTQ individuals through the sex discrimination clause, Gorsuch enshrined these protections as being subject to a lower level of legal scrutiny in future court cases than would be applied to an unchangeable characteristic like race.
When a case is brought in the court system, discrimination between individuals based on race is considered rarely justifiable and is therefore subject to “strict” legal scrutiny. In contrast, in some cases discrimination on the basis of sex has been found to be necessary to substantially promote an important governmental interest, and is therefore subject to a lower level of legal scrutiny known as “heightened” scrutiny.
Furthermore, by subsuming LGBTQ protections under the category of “sex,” Gorsuch has implicitly suggested that neither transgenderism nor homosexuality are distinct characteristics (on par with race, color, sex or national origin) that are entitled to their own category of protection.
This aspect of the ruling also shores up the notion of biological sex as a real characteristic that goes beyond being a mere social construct. The very analysis that Gorsuch applied turns on whether an employee’s behavior matches with the employer’s expectations of their biological sex. This implies that the employee’s biological sex is a real and discernible characteristic of their person.
Neither of these outcomes satisfies the protections that were hoped for by many leftist activists.
In legal circles, this is a conservative approach that is distinct from more post-modernist views employed by legal progressives like Justice Ruth Bader Ginsburg, whose decisions can be influenced by personal values. Had this decision been written by a justice with more post-modernist views, the legal outcome could have been far more liberal.
While conservatives and liberals alike are free to disagree with Gorsuch’s opinion, to call it legally leftist is inaccurate since it is founded on traditional legal principles, fails to recognize LGBTQ status as being on par with an inherent characteristic like race, and affirms distinctions based on biological sex.
Laura Williamson is a political writer based in Westminster, Colorado, and a contributor for Young Voices, a nonprofit providing pro bono media placement services to young conservative writers.