I am stunned by the decision of the Supreme Court today in its decision on Bostock v. Clayton County, mostly because it rests upon a demonstrably inaccurate claim. The first paragraph of J. Gorsuch’s majority opinion contains this primary sentence, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” The entire decision rests upon this assertion, which is obviously and undeniably false.
The straightforward fact is that if an employer fires an individual for being homosexual or transgender, what sex that person is has no import on the decision to fire. If a person is fired because they “are” transgender, whether they are a male transgender or a female transgender makes no difference one way or the other. Similarly, if a person is fired because they practice homosexuality, it makes absolutely no difference if they are a female practicing homosexual activities or a male practicing homosexual activities. Sex was not the motivator to fire, but a practice offensive or objectionable to the employer. Whether that is permissible is another question, but this decision rests upon a falsehood.
The second paragraph goes on to acknowledge that the drafters of the Civil Rights Acts did not anticipate their work would lead to this result, but asserts, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statue give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
This intellectual sleight of hand is astonishing in its audacity and transparently disingenuous. To claim the imperative of literal interpretation while simultaneously presuming a revisionist definition for “the express terms of a statute” is so hypocritical as to deserve nothing other than disdain.