I am not a lawyer or a legal historian, just a law student with too much time on their hands. Nothing that I write is legal advice or legal analysis. 
On Bostock 1.31.25
A few days ago, FedSoc hosted an event on campus discussing whether SCOTUS should overturn Bostock, the case that ensures that Title VII protections apply to members of the LGBTQ+ community. I thought I would write a little about the case to share with my family, because the arguments attacking Bostock are just like the ones animating the challenge to birthright citizenship under the 14A. Recognizing their arguments (as flawed as they are), I think is the first step for me in understanding how to fight them.
Before Bostock was decided in 2020, it was generally legal for an employer to fire you if you were not hetero or cis. This is what happened to Gerald Bostock; he was fired from his job after he was found participating in a gay softball league after work. His employer, Clayton County, Georgia, informed Bostock that him participating in a gay softball league was "unbecoming" of a county employee. His case was later consolidated with two other cases of employment discrimination based on sexual orientation and gender identity.
The issue in the case was whether the language under Title VII, which expressly prohibits discrimination based on "race, color, religion, sex, or national origin," applies when an employer discriminates against an employee for being gay or transgender. If the answer was yes, Title VII protections do protect employees from being fired on the basis of their gender identity or sexual orientation, then an employee can sue and seek remedies if fired or otherwise discriminated against because of their gender identity or sexual orientation.
The point of dispute in Bostock was the fact that Title VII does not explictly refer to discrimination based on "sexual orientation or gender identity" at all. All it says is that you can't discriminate based on "sex." Courts will often try to figure out what the Congress that passed the statute meant when trying to interpret a statute. There are a lot of other "canons of statutory construction" that judges can rely on but for these purposes, the Justices in Bostock were tasked with trying to figure out WHO Title VII protected when it was enacted in 1964 (this is complicated by later amendments to Title VII but let's move on). So if Title VII did not explictly refer to discrimination based on sexual orientation or gender identity, did the enacting Congress intend to protect gay or trans people?
The winning argument in the case is that the answer to that question does not matter, because if you just look to the words of the statute itself and apply logical reasoning, discrimination based on sexual orientation or gender identity is clearly covered under Title VII. How did the court get there? It said that discrimination based on sexual orientation or gender identity is necessarily discrimination based on SEX. And as the language of the act makes clear: Title VII prohibits discrimination "based on sex."
An easy way to conceptualize the majority's argument is this. Let's say there are two Camerons that work at the same office. One Cameron is a woman and one Cameron is a man. Their boss finds out that both Camerons have girlfriends. The boss fires the female Cameron on the spot because he is opposed to same-sex relationships, but does not fire the male Cameron. The employer's action amounts to sex discrimination, because BUT FOR the female Cameron's sex, she would not have been fired. If the female Cameron were a man, then the boss would not have fired her when he found out she had a girlfriend. While I have a small concern with this argument only because it reaffirms the gender/sex binary (which I would love for us to ultimately move past in my lifetime), I really like how the case was framed. Not only did it expand the protections of Title VII, but it also explictly rooted gender identity and sexual orientation discrimination in sex, which opens up Constitutional protections as well (since sex has been recognized as a protected class under the Equal Protection Clause of the Constitution).
My understanding of FedSoc's reaction against Bostock is that Congress in 1964, when it enacted Title VII, did not intend to extend those protections to gay or trans people. Which is of a similar vein to their attacks against the 14A birthright citizenship clause, arguing that the Congress that enacted the 14A did not intend to extend birthright citizenship to anyone born on American soil (although I think they are just flat wrong on this point, no ifs or buts). My reaction to their arguments is, so what? Even if Congress in 1964 did not intend to extend Title VII to a broader class of people, so what? Isn't it enough that we want to extend those protections now, and that our current duly-elected Congress, if they really have something to say about it, can pass a clarifying amendment saying otherwise?
I like the argument from Justice Gorsuch in Bostock much better. Title VII clearly confers protections to discrimination based on sex, the end. 14A clearly confers "birthright citizenship," the end. Even if someone says "Oh wait! That's not actually the end, because what is the meaning of the word 'birth'?" I don't think we should entertain those debates. I don't think it's helpful to engage in textualist battles when it comes to protections so fundamental.
Discrimination based on gender identity or sexual orientation is wrong. Thus, we should read Title VII (however we can) to reflect that (I know what is wrong is subjective, but I'm not willing to budge on this point). Not granting citizenship to those subject to our domestic laws is wrong. Thus, we should read the 14A to reflect that. I think we waste too much time in engaging in intellectual debates about the meaning of the word "the" and ultimately forget who we are debating for.
I know everything that I've just written is a gross simplification and that sometimes the meaning of the word "the" is actually important. And that federal judges aren't supposed to engage in policy making (unlike Congress) because they are unelected officials and according to the Constitution, that's just not their job. And it would threaten the legitimacy of their insitution if they did. But federal judges can never avoid engaging in policy making, even when they claim they are just "intepreting the black letter law." (So right now, maybe some policy making is what we need?)
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