Most LGBTQ+ advocates did not expect this to be a celebratory Pride month. Parades across the country have been canceled due to the Covid-19 pandemic. Just last Friday—on the anniversary of the Pulse nightclub massacre—the Health and Human Services Department announced the surprise elimination of civil rights protections for trans persons seeking health care. Over the weekend, ACLU attorneys and many others nervously bit their fingernails wondering—fretting over—how the Supreme Court’s conservative majority might rule in the employment discrimination cases it heard last fall.
To great shock, the court began this week by rolling back the tide of queer despair with its decision in Bostock v. Clayton County. In a 6-3 majority opinion penned by Trump appointee Justice Neil Gorsuch and joined by Chief Justice John Roberts (a George W. Bush appointee), the court extended federal civil rights law protections not only to gay and lesbian workers but trans ones as well. The majority did so by interpreting “sex” in Title VII of the Civil Rights Act of 1964 to mean both “sexual orientation” and “gender identity,” therein granting a civil rights remedy to over 3.9 million LGBTQ+ persons who were previously uncovered by state or municipal laws.
This victory cannot be easily overstated. More than one in four trans Americans have been fired, not hired, or passed up for promotion because of their gender identity or expression. And nearly half of LGBTQ-identified persons remain closeted at work, fearing the discrimination that being out might invite. These increased workplace protections will also be a boon for queer workers attempting to unionize. Workers with UNITE HERE, for instance, have been organizing for months against Starbucks’ alleged discriminatory treatment of its LGBTQ+ and black workers.
The Bostock decision also marks a monumental shift in the scope of the Supreme Court’s decision-making since its same-sex marriage rulings in 2015. Two years ago, the court appeared to be putting a lid on rights expansions in the infamous Masterpiece Cakeshop decision. Though that case was ultimately decided on a technicality, longtime gay rights advocate Justice Anthony Kennedy gave some credence to Jack Baker’s claim that his First Amendment rights to artistic expression and religious free exercise allowed him to refuse service to gay couples seeking wedding cakes. Such religious liberty–themed defenses of discrimination have proliferated in recent years—see the Texas GOP’s absurdly named “Save Chick-fil-A” legislation—and are likely to return to the court’s docket one day soon. Though new dangers loom, the Bostock decision makes clear that the court’s 2015 marriage decision was not the last of its major rights declarations for queer people.
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With Kennedy off the bench and the federal judiciary looking increasingly Trumpian, how might we explain the court’s ruling in Bostock? How is it that not one but two conservative justices ruled in favor of the LGBTQ+ litigants?
For one answer, we can look to the text. In his majority opinion, Gorsuch reconciled the interpretative style of his predecessor, archconservative and reviled opponent of LGBTQ+ equality Justice Antonin Scalia, and his former mentor Kennedy’s sympathies for queer rights. In Bostock, Gorsuch employed a textualist approach to Title VII. Like Scalia, the junior justice eschewed the search for the original drafters’ intentions. Instead, Gorsuch attended to the textual meaning of sex, which he read as prohibiting an employer from firing “an individual merely for being gay or transgender” because such an action is, at its roots, motivated by sex. If a boss fires a lesbian worker for marrying someone of the “wrong” sex or a trans or non-binary person for expressing themselves with the gendered garb of the presumed “opposite” sex, then that employer has engaged in impermissible sex discrimination.
This logic might also partly explain Roberts’s vote. Though the chief justice previously lambasted the court’s same-sex marriage decision in Obergefell v. Hodges for its reliance on 14th Amendment substantive due process—i.e., the rationale for cases like Roe v. Wade that are generally condemned by conservatives for having “invented” new rights—Bostock’s textualist basis is less anathema to Roberts’s understanding of his judicial role.
Outside of the realm of legal theory, Gorsuch and Roberts also appear to have heeded corporate America’s newfound desire for a politics of tolerance. In a slew of amicus briefs, hundreds of corporations and business associations implored the court to rule in favor of the LGBTQ+ plaintiffs. A coalition of businesses with an annual revenue of over $5 trillion, for example, argued that federal legal protections create a corporate climate that “boosts productivity,” “reduces administrative burdens,” and “benefits employers’ ability to attract and retain employees.” In one particularly pithy phrase, a group of CEOs and boards of directors warned that discrimination “would undermine the nation’s business interests.”
Like Kennedy, Gorsuch has had little trouble squaring his personal—and now political—support for his gay colleagues and friends with his faithful devotion to the forces of capital that brought him to the bench. Both Gorsuch and Kennedy, for instance, have long track records of voting against labor and in support of anti-regulation schemes. The chief justice, too, has a knack for reading a political room. In his 2012 opinion upholding the Affordable Care Act, Roberts bucked the conservative partisan opposition to “Obamacare” and ruled in a manner that was at once bipartisan and catered to the health care insurance industry, which had largely benefited from market-based health care reform.
In the wake of this latest pro-LGBTQ+ rights Supreme Court ruling, what can be said definitively is this: Antidiscrimination is now a bipartisan issue—or at the very least, is rapidly becoming a one—in what is otherwise a highly unequal polity defined by vast economic inequality and corporate rule. As evidence of the cross-ideological support for equal rights, a 2019 poll revealed that over 90 percent of Americans supported antidiscrimination measures for gays and lesbians. Another found that only one-fifth of Americans think that a boss should be able to terminate a worker for their gender identity. The public’s overwhelming support, combined with capital’s obvious preference, may explain Trump’s mild, acquiescent statement on the court’s decision. Thus, the promise of equality of opportunity under the law for gay and trans Americans has never been more fulfilled—and it only took until the advent of the Second Gilded Age to achieve it. So, where do we go from here?
The answer to that question might be less the province of the judiciary and more that of the union hall. The organizing of those LGBTQ+ Starbucks workers was about more than just exposing the hypocrisy of the coffee giant’s cheap and cynical equality talk or efforts to pose as a queer ally. It was about more than just being paid the same meager wages of their cis, straight, and white coworkers. Throughout their union campaign, the Starbucks workers called for an end to unequal treatment—but they also demanded more benefits, better wages, and adequate protections on the job for all workers.
Taken together, these demands are the real stuff of dignity and equality. They are the things that an antidiscrimination policy or judicial ruling are powerless on their own to provide. These workers and others reckoning with pandemic-induced levels of unemployment, stagnant wages, and eviscerated collective bargaining rights give voice to a much fuller sense of equality than the Supreme Court could ever grant. Accordingly, the future of equality will be fought at least as much in shop floor struggles, before labor boards, and in strikes against the boss as it will be in the chambers of the Supreme Court.
