In banning LGBTQ discrimination, did Supreme Court license sex discrimination?

Sometimes the way the Supreme Court reaches a result matters as much the outcome of the particular case. Harvard recently discovered that truth.

The Supreme Court’s decision in Bostock v. Clayton County, which held that discrimination based on sexual orientation and gender identity violates Title VII of the Civil Rights Act of 1964, represents an important milestone in advancing equality. However, in reaching the proper conclusion, Justice Neil Gorsuch’s majority opinion relies on a kind of arid formalism. The opinion never sets forth a vision of equality or explores the deep connections between discrimination based on sex and hostility to gay, lesbian, and transgender individuals.

Not only does Justice Gorsuch’s reasoning limit the reach of the opinion, but it may actually license new forms of discrimination.

Harvard University (where Justice Gorsuch received his law degree) fell victim to this perverse understanding of the law when it recently declared that the Court’s decision in Bostock forced it to abandon its policy of discouraging single-gender organizations.

Harvard’s policy, adopted in 2017, had targeted fraternities, sororities, and “finals clubs.” Any student who joined such unsanctioned single-gender associations would be banned from leadership positions in student organizations and athletic teams and from prestigious college-administered fellowships, such as Rhodes and Marshall scholarships.

Whatever one thinks of Harvard’s plan, how could a policy that targets organizations that discriminate on the basis of sex itself constitute discrimination on the basis of sex? After all, the whole point of Harvard’s policy was to ban sex-based discrimination.

Here is where Justice Gorsuch’s approach demonstrates its failings and opens the door to this topsy-turvy conclusion. Justice Gorsuch adopted an almost mathematical method. In his view, the Civil Rights Act can be understood to adopt the rule that an employer may not treat XY differently from XX. When an employer fires an employee for being gay, the employer is in effect declaring that XY + XY does not equal XY + XX. The employer thus treats XY and XX differently and thereby violates the statute.

So how does Harvard’s policy violate the mathematical rule? Harvard is prohibiting a group consisting of XY+XY+XY, but not a group consisting of XY+XY+XX. The only difference between the two groups is that one has XX and the other only XY. Thus, according to this mathematical formulation, Harvard is discriminating because of sex. In a suit brought against Harvard by single-gender organizations, District Judge Nathaniel Gorton accepted a version of this argument last August. In the wake of the Supreme Court’s decision in Bostock, Harvard decided that it had to abandon its defense.

To be clear, Judge Gorton’s reasoning does not inevitably follow from Bostock. Harvard could have stood its ground. However, Judge Gorton’s decision does find support in Justice Gorsuch’s mathematical method. But nothing in the Civil Rights Act requires this result. Harvard’s antidiscrimination policy fell victim not to the statute, but to Justice Gorsuch’s crabbed textual exegesis.

The Supreme Court could have focused not on mathematical formulas, but on the social reality of discrimination based on sexual orientation and gender identity. Animus against gay, lesbian, and transgender individuals has deep connections with enforcing traditional sexual roles.

The Supreme Court had previously held that the Civil Rights Act banned discrimination based on failing to conform to sexual stereotypes. Justice Gorsuch does mention this principle and cite these cases. However, his main emphasis lies in the formal comparison of XY and XX.

The opinion lacks a substantive discussion of how the reality of discrimination based on sexual orientation and gender identity reflects the reality of discrimination based on sexual roles. Such an account would yield a broader understanding of discrimination in other contexts and also prevent the kind of misreading of the statute that doomed Harvard’s policy.

Harvard’s policy had nothing to do with enforcing traditional sex roles. A deeper engagement with equality and discrimination would have vindicated Bostock’s claim, without endangering Harvard’s attempt to advance equality.

Instead, Justice Gorsuch’s math has limited the scope of this landmark ruling and lent support to the perverse theory that preventing sex-based discrimination constitutes sex-based discrimination. One does not need a Harvard degree to understand that this theory cannot be correct.

Robert Schapiro is the Asa Griggs Candler Professor of Law at Emory University.