Vargas: The radical implications of the Supreme Court’s Bostock decision

The Supreme Court on June 15 handed down its historic decision in Bostock v. Clayton County, which held for the first time that LGBTQ+ people are protected from employment discrimination by Title VII of the Civil Rights Act of 1964.

The decision was a surprise to many, in no small part because Chief Justice John Roberts and Justice Neil Gorsuch, two conservative justices, joined the court’s liberal wing in the 6-3 majority. Anyone expecting these two conservative jurists to decide the case narrowly was also surprised, as Gorsuch’s majority opinion was breathtakingly broad. It handed LGBTQ+ rights advocates a stunning victory with radical implications for the future of American law.

As I wrote this time last year, the facts of the case are relatively straightforward and the questions presented are simple. The issue before the Court was whether discrimination against LGBTQ people was prohibited by Title VII, which bars discrimination “because of sex.”

Gorsuch held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” In reaching this conclusion, he applies what is called the “comparators” test. The test says that a violation of Title VII occurs when, keeping all other factors exactly the same, an employer treats men and women differently. In applying this test, Gorsuch wrote:

“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

In short, if a man attracted to men will be terminated, while a woman attractive to men will not, this is sex discrimination.

This decision is remarkable for the fact that it effectively opens the door to protect LGBTQ+ people under the more than 100 federal laws currently on the books that ban sex discrimination. Here are a few of the most consequential federal laws that might be affected:

• The Fair Housing Act, which prohibits sex discrimination in public housing programs
• The Equal Credit Opportunity Act, which prohibits sex discrimination by creditors
• The Equal Pay Act, which mandates equal pay regardless of sex
• The Family Medical Leave Act
• Title IX of the Education Amendments, which prohibits sex discrimination in education
• The Pregnancy Discrimination Act
• Section 1557 of the Affordable Care Act, which prohibits sex discrimination in health care

To be clear, these laws do not automatically include LGBTQ+ people merely because the Supreme Court found that we were included in Title VII. However, the sweeping rationale of the Supreme Court’s decision in Bostock suggests that when future LGBTQ+ plaintiffs sue for protection under these laws, the lower courts will apply the logic of Bostock and likely rule in favor of LGBTQ+ plaintiffs. Undoubtedly LGBTQ+ advocacy groups around the country are preparing to bring these cases as we speak.

In fact, the Trump Administration has already handed LGBTQ+ rights advocates two test cases. In June, the Department of Health and Human Services announced that it was withdrawing the Obama Administration’s rule protecting transgender individuals from discrimination under Section 1557 of the Affordable Care Act. Also, the Department of Housing and Urban Development announced that it was withdrawing a rule protecting homeless transgender people.

No doubt these decisions will be challenged, but it seems likely that cases will also be brought arguing that Section 1557 of the Affordable Care Act and the Fair Housing Act already include protection for transgender people for the same reasons as Bostock.

Justice Samuel Alito’s dissent is noteworthy for a different reason. In law there is an old saying: “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither the facts nor the law is on your side, pound the table.” Alito spends 90 pages pounding the table, a clear sign that the conservative argument here was remarkably weak.

The Bostock decision has the potential to be one of the most historic decisions of this century, but unlike other historic LGBTQ victories such as Obergefell and Lawrence, which effectively ended long running battles over marriage equality and sodomy laws, Bostock is the opening act in what could be a radical decades-long shift in non-discrimination law. For the first time in decades, it feels like LGBTQ+ rights is now on offense in the courtroom.

Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce.