Supreme Court Justices Dissent: The Opposition to Extending Title VII’s Protections to Gay and Transgender Employees

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On June 15, 2020, the Supreme Court of the United States, in a 6-3 decision, held Title VII of the Civil Rights Act of 1964’s prohibition of sex discrimination encompassed discrimination against gay and transgender individuals. Two dissents followed the majority’s opinion—Justice Samuel Alito, Jr.’s, with whom Justice Clarence Thomas joined, and Justice Brett Kavanaugh’s.

Justice Alito’s Dissent

Justice Alito began his dissent with the following statement: “There is only one word for what the Court has done today: legislation.” According to Justice Alito, the majority abused its power and usurped the constitutional authority granted to the other branches of government. First, Justice Alito pointed out that neither sexual orientation nor gender identity appear on the list of protected categories in the statutory text of Title VII. Second, Justice Alito remarked on the numerous bills introduced into Congress regarding discrimination for “sexual orientation” or “gender identity,” which have not reached the president’s desk. According to Justice Alito, sex discrimination means what it has always meant—discrimination based on the definition of sex as “biological distinctions between male and female.” Justice Alito questioned how the majority’s opinion refutes this dictionary definition and thereby concluded that discrimination based upon a person’s sexual preference or gender identity does not fall under the definition of “sex.”

As support for these contentions, the dissent asserted the Court’s duty is to “interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.’” [Emphasis in original.] Justice Alito relied upon Congress’s interpretation of the statutory text at the time Title VII was enacted in 1964 to show there is “not a shred of evidence” indicating sex discrimination was to include sexual orientation or gender identity.

Justice Alito argued that when Title VII was passed in 1964, “[d]iscrimination was not understood as having anything to do with discrimination because of sexual orientation or transgender status.” Rather, he said, Title VII’s prohibition on sex discrimination, as enacted in 1964, was limited to advancing equal treatment for men and women. Therefore, the meaning of sex discrimination during 1964’s passing of Title VII did not include discrimination on the basis of sexual orientation or gender identity, he contended.

To emphasize his point that sexual orientation and gender identity do not fall within the definition of sex, Justice Alito pointed to an example during oral argument that exhibits the issue he takes with the majority’s opinion.

At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimination. And she was right.

The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex.… An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge.

Justice Alito further attacked the majority’s opinion that sexual orientation and gender identity are closely related to “sex” and thereby discrimination on these bases implicates “sex-based rules” protected under Title VII’s prohibition of sex discrimination. However, he went on to argue that many things are related to sex, e.g., sexual assault, sexual violence, and sexual intercourse, but that does not mean they are related to Title VII’s protections. With the majority’s distinction of the activity being inextricably related to sex, Justice Alito stated that the Court essentially rewrote Title VII’s statutory protections. By proclaiming sex discrimination includes both sexual orientation and gender identity, the Court “updates Title VII to reflect what [the Court] regards as 2020 values.”

In short, Justice Alito argued the majority’s opinion “is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation … that courts should ‘update’ old statutes so that they better reflect the current values of society.” He wrote that the majority opinion “arises from humane and general impulses,” but that “the authority of this Court is limited to saying what the law is,” from which he concluded that a strict reading of Title VII indicates that in 1964 Congress outlawed discrimination only on the basis of whether a person is biologically male or female. [Emphasis in original.]

Justice Kavanaugh’s Dissent

In the second dissent, Justice Kavanaugh similarly argued the majority opinion extended its arm into legislation in violation of the separation of powers, stating that “[u]nder the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” He noted that this issue has been before the other branches, and they have not yet come together to enact changes to the law. As the Court’s role is “not to make or amend the law,” Justice Kavanaugh asserted that “[a]s written, Title VII does not prohibit employment discrimination because of sexual orientation” or gender identity.

To support his argument, Justice Kavanaugh turned to Congress’s history in enacting similar anti-discriminatory legislation that is distinct from Title VII, citing the Age Discrimination in Employment Act, passed in 1967; the Rehabilitation Act, passed in 1973; and the Americans with Disabilities Act, passed in 1990. In these anti-discrimination laws, “this Court did not unilaterally rewrite or update the law.” Instead, Congress and the president passed new legislation in accordance with the Constitution’s separation of powers.

Kavanaugh further pointed out that although there are several federal statutes that prohibit sex discrimination, and several that prohibit sexual orientation discrimination, none “expressly prohibit sexual orientation discrimination in addition to expressly prohibiting sex discrimination. … To this day, Congress has never defined sex discrimination to encompass sexual orientation discrimination. Instead, when Congress wants to prohibit sexual orientation discrimination in addition to sex discrimination, Congress explicitly refers to sexual orientation discrimination,” he wrote.

Relying on the “ordinary meaning” rather than the “literal meaning” of phrases, Justice Kavanaugh attacked the majority’s holding that discrimination on the basis of sexual orientation or gender identity is at least in part because of the sex of the aggrieved employee and thereby fits within the statute’s phrase of “discriminate because of sex.” Conversely, Justice Kavanaugh answered in the negative to the question of whether “discriminate because of sex” encompasses discrimination on the basis of sexual orientation or gender identity.

Justice Kavanaugh concluded his dissent in stating, “[t]o be sure, the majority opinion today does not openly profess that it is judicially updating or amending Title VII. But the majority opinion achieves the same outcome by seizing on literal meaning and overlooking the ordinary meaning of the phrase ‘discriminate because of sex.’” While Justice Kavanaugh acknowledged the majority’s opinion is an “important victory achieved … by gay and lesbian Americans,” he nevertheless argued that “it was Congress’s role, not this Court’s, to amend Title VII.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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