“Because of sex…” What does the SCOTUS decision mean for public education?

Welcome back, Readers!  The Dawg has taken a two-week break and is eager to get back to work.  We have a lot of interesting things to talk about. 

Number one on that list is the Supreme Court’s 6-3 decision in Bostock v. Clayton County, Georgia.  The issue was straightforward: Title VII of the 1964 Civil Rights law prohibits discrimination in employment “because of sex.”  Does that include sexual orientation?  What about transgender status?  Justice Gorsuch wrote the opinion for the six-person majority, holding that discrimination in employment based on sexual orientation or transgender status is always and automatically a form of sex discrimination.

That settles that. Any discrimination in hiring, discharge, compensation, or other employment related issues based on a person being gay, lesbian or transgender is illegal. 

What about students?  Title VII covers employment, and that was the only law under consideration in the case.  Justice Gorsuch noted that there were concerns about the effect of the court’s decision on the use of bathrooms, locker rooms and other facilities.  He noted that this decision about Title VII might implicate other statutes that similarly address sex discrimination—e.g., Title IX.  But the Honorable Justice blithely swept all of that away, noting that none of those issues were before the court.  This decision is not about bathrooms, athletic competition, or mixed-gender student housing. It was about employment. That’s all. 

What about employers who offer religious objections to the employment of gays and transgenders?  The majority dodged that issue also, noting that none of the defendants in this particular case raised such issues. So that will have to be addressed in a later case.

The dissenting opinion of Justice Alito, joined by Justice Thomas, predicts grave consequences from the court’s decision:

Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead.  

Justice Alito suggests that it will lead to a lot of litigation over bathrooms, transgender males competing on girls’ teams, housing in colleges, and other issues.  That’s a safe prediction. 

Advocates for gays and transgenders are sure to criticize the dissenting justices for seeking to block the path toward equal treatment, but that criticism ignores the significant issue the dissenters raise. The three dissenters simply believe that this is a change that should be made by Congress, not by six black-robed lawyers.  It’s a familiar argument, the losing side claiming that the winners are “legislating from the bench.”  In fact, Justice Alito leads off his lengthy dissenting opinion with this blunt assessment:

There is only one word for what the Court has done today: legislation.

So that’s how the law works.  We settle one issue, and leave others on the table.  For HR departments, this decision provides clarity. For those who deal with students, not so much.  Onward through the muck.

The case was decided on June 15, 2020. 


Tomorrow: Toolbox Tuesday!!