The Supreme Court Interprets The Word “Sex”

And the union becomes a bit more perfect than it was the day before.

There are moments in history so chaotic that when a change for the better occurs, it evokes a series of emotions. In some corners, panic emerges at the fragility of the moment, in others, surprise. But mostly what occurs is joy mixed with relief, a happy acknowledgement that we haven’t all gone mad and that progress has ultimately won out.

Let June 15th, 2020 be known to you, because history altered course that day. The Supreme Court, led by one of its most conservative justices in a 6–3 decision, interpreted the definition of “sex discrimination” as meaning a discrimination not only based on gender but sexual orientation and gender identity as well. Neil Gorsuch wrote the majority opinion, joined by the four liberal justices and Justice John Roberts, saying “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.

Color me and many, many others surprised. The bitter fight over his and Brett Kavanaugh’s Supreme Court seats is still fresh in many liberals’ minds, and it was only the day prior that the Trump Administration viciously decided to allow discrimination against transgender people with regards to health services continuing a long trend of callously writing off transgender people as nonexistent in every way it can from education to the military to housing. On the other side of the aisle, conservatives were appalled in no uncertain terms — which I must confess is a delicious schadenfreude that I am most certainly reveling in — saying things like, “You can’t redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy.

Textualism, of course, refers to the idea that the interpretation of the law is primarily based on the ordinary, plain meaning of the text, ignoring intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. This is a school of legal thought most often associated with conservative justice and most odiously with that of The Federalist Society. On the contrary, purposivism, the legal school of thought most associated with more liberal-leaning judges, seeks to set the intended purpose of the law and the problem it was seeking to solve front and center.

At any rate, this ruling is an unmitigated victory for LGBTQ people all across the country and will inevitably be the initial thrust needed that gets the ball moving on so many more favorable outcomes with regards to a variety of other issues adversely affecting the LGBTQ community. The many moves the Trump Administration has taken in the last four years to legalize discrimination against LGBTQ people are based on a narrow interpretation of sex discrimination with regards to the specific law at play here. Justice Neil Gorsuch just blew their defense wide open, noting plainly in his opinion that, “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” I fully expect the ball to continue rolling down the hill in favor of LGBTQ rights in the coming years.

Today, in many ways, echoed June 26th, 2015, when the Supreme Court in effect, legalized same-sex marriage. I don’t foresee the White House being lit up in rainbow colors, but the feeling is all the same: joyous relief. All too often it can feel like our country gets brought along only kicking and screaming and clawing and gnashing into the modern day, step by painful step. It’s important to remember each concrete move forward though, and how it can often come from the oddest of places.

No one could imagine that the expansion of what qualifies as sex discrimination would be handed down from on high by old men and women in robes, but it was. And there is no question that ultimately this moment, this victory is long overdue and not nearly enough, but as President Barack Obama once said, “it is where we start. It is where our union grows stronger. And as so many generations have come to realize over the course of the 221 years since a band of patriots signed that document in Philadelphia, that is where the perfection begins.”

We wake up today on June 16th, 2020 in a more perfect union than we had the day before.

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