As I’m sure that y’all have heard, SCOTUS has decided that the Civil Rights Act of 1964’s Title VII bans employment discrimination against folks on the basis of sexual orientation and being trans. The opinion was even written by a conservative justice. I’ll probably cover the decision in more detail later (though it’s been very hard to write lately), but right now I just want to call out how utterly ineffective I have been in pushing for change.
I had no effect on this decision at all.
And yet, the heart of this decision is simply taking a traditional legal test seriously. This is the “but for” test, and is used in liability cases of many kinds, as well as occasionally in other ares of law. The “but for” test is used this way:
Would the alleged harm have come to pass if all circumstances were the same but for one fact.
The particular fact chosen for analysis is always one crucial to assigning liability. For instance, if someone inherits a genetic predisposition to cancer, also lives in an area affected by a carcinogen spill from ACME Corporation, and then dies of cancer as a teenager, the test in a lawsuit against ACME would likely be:
Would the teenager’s death have come to pass if all circumstances were the same but for the carcinogen spill?
If it turns out that the majority of people inheriting that predisposition die of cancer in their teens, then we can say that the person’s early death probably would have come to pass even without the spill, and the company is without liability. But if it turns out that the majority of people inheriting that predisposition live well into their 60s, only 28% die of cancer at all, and only 20% die of the specific cancer related to that predisposition, and we have no evidence of anyone with that specific predisposition dying of the related cancer before age 50, then we can conclude that rather than the predisposition being responsible for the early death, but for the spill, the victims would have lived at least until age 50, having time to enjoy life, gain an education, and work productively for at least a couple decades.
In the 1990s, long before going to law school, I got this radical, weird ass idea in my head. What if instead of trying to prove that sexual orientation discrimination was religious in nature (this was a thing back then, and not without reason), we just asked the court to apply the but for test to sex? I was imagining this:
If the employer fired Alex for dating Montana, as the facts indicate, the test before the court is this: would Alex still have been fired if Alex’s sex was different?
As we all know, sexual orientation is complicated. I have only very rarely dated men, but at least part of that is that my attractions are always partially personality-based, and as an adult it’s been hard to find men that have the common interests I seek. It’s not hard to imagine someone who calls themselves gay or lesbian, but speaks of being attracted to trans* people or people that otherwise wouldn’t be included in a strict definition of a “gay” or “lesbian” orientation.
So the test throws all that complicated muck about sexual orientation out the window and asks would the employer have fired someone for identical behavior performed by an employee of a different sex. If the answer is no, then this firing is already prohibited by the Civil Rights Act of 1964, in the text of its Title VII.
And this is exactly what SCOTUS found today, 25 years later.
But don’t think that I had anything to do with it. Despite much media focus on religious antagonism towards queer people shaping the coverage of important legal cases, a few lawyers already were making these arguments and writing law review papers using these arguments years before my brainstorm. (IMO, not enough, but they were there before me.)
What’s odd is that it took 25 years for a supposedly neutral judiciary to accept these arguments. Neil Gorsuch, who wrote today’s ruling, holds to a classic conservative pose: I add nothing and take away nothing, I just read the text of the law neutrally and decide the case according to the plain law.
Today it is possible for a SCOTUS justice to say that this requires Title VII to be applied in such a way that discrimination based on sexual orientation or being trans (or, presumably, being intersex, though the issues faced by intersex people are not, by and large, workplace discrimination) must be banned as a form of discrimination which relies on underlying discrimination based on sex. Since the underlying discrimination is banned, the derivative discrimination is also banned.
But what about the 25 years since an untrained, random 20-something said, “Holy shit, apply the but for test and this is already fucking illegal”? The but for test is unchanged since the mid-90s. The relevant text of Title VII is unchanged since the mid-90s. Nothing required to reach this decision has changed since the mid-90s except our shared societal judgement that (then) QTs were subhuman and second class to (now) that QTs are as human as straight, cis people and no special second-class status is justified.
This, to me, exposes the dishonestly of so-called textualism. All the outside appeals to how queers are different and blah, blah, blah didn’t matter shit to what textualists say is their only concern: the plain text of the law. The law never said, “You can’t discriminate based on sex, unless someone is really pretty weird and their sex lives gross you out.” The law just said that you can’t discriminate based on sex. But no conservative had the courage or honesty to live and die by the text when it appeared to command a result contrary to their own prejudices.
So celebrate the ruling, but also let the ruling give you pause for sober reflection as to how much of our human flaws actually become written into law even by those who most loudly claim they are doing nothing of the sort.