July 9, 2020
July 24, 2020

SUPREME COURT’S DECISION in the case of bostock v county: A CROWNING GLORY, yet NOT ENOUGH?

On 15th June 2020, the Supreme Court of The United States left the LGBT community and the world wonder-struck by delivering a historic verdict in the case of Gerald Lynn Bostock v Clayton County, Georgia. The void which eventually grew, due to the absence of any specific federal law that manifestly prohibited the employer from discriminating against an individual on the grounds of sexual orientation and gender identity was filled by the monumental judgment laid down by Justice Gorsuch.          
The Civil Rights Act of 1964 was a milestone in the field of labour law as it interdicted discrimination based on race, colour, religion, sex, or national origin. The conundrum surrounding the ambit of the word ‘sex’ was put to halt by the court who ruled by 6:3 majority that “protection under Title VII of the act extends to incorporate sexual identity and gender orientation and that discrimination on the basis of sex naturally subsumes discrimination on the ground of sexual orientation.”
The plain reading of the Title VII of the Civil Rights Act, section 2000-e (2) (a) (1) makes it crystal clear that it is legally wrong and hence unacceptable, for an employer to refuse/fail to hire, or discharge any individual or discriminate against any individual vis-à-vis his privileges and amenities accompanying the employment, only by reason of race, colour, sex, religion or national origin.
Justice Gorsuch stated that An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of different sex. ‘Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.’ From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. The message of the statute is simple yet praiseworthy. An individual’s sexual identity is no relevant requisite to decide upon the matters of recruitment, promotion, and innumerable other premiums associated with employment.  
An act of intentional discrimination performed by the employer against the transgender workers nolens volens triggers the liability under Title VII of the Act. Victor Madrigal-Borloz, UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, called the ruling a “very significant step towards breaking the cycle of discrimination that often condemns lesbian, gay, bisexual, trans and gender-diverse persons to social exclusion, and ultimately, to poverty”.
Justice Alito, in company with Justice Thomas and Kavanaugh, demurred from the majority opinion and established that Title VII forbids discrimination only on five specific grounds namely race, colour, religion, sex, or national origin, and obviates the term ‘sexual orientation’ from the statute. The concept of ‘sex’, ‘sexual orientation’ and ‘gender identity’ are in contradistinction to each other. Justice Alito believed that shrugging aside the literal interpretation of the statute because the parties happened to be despised at the time of the inception of the law, would, by all means, drop the scale of justice in support of the popular, thereby defying the core principle of equality endorsed by the constitution.
Justice Kavanaugh remarked that after an uphill battle, miraculous triumph has been achieved by Gay and Lesbian Americans however, the responsibility to amend the statutory provisions vest with the congress and not the court. When the court barges into the domain of the congress, it invariably leads to chaos and confusion among the masses regarding who is the real policymaker of the country. Hence, the majority decision is a betrayal to the doctrine of separation of powers enshrined in the U.S. Constitution.   
Though the community celebrated the victory with the utmost happiness, the court left various critical questions unaddressed. As the discrimination protection extends to all 50 states of America, it fails to assimilate the condition of the employees working in small businesses (involving 15 employees or less). The quantum of the population falling under this category is debatable due to the non-availability of data. However, as reported by Al Jazeera, the U.S. Bureau of Labor Statistics estimates about 17% of the workforce is employed by companies with 19 or fewer employees, which connotes that a substantial portion of the population is still unguarded against the discriminatory practices culminating at the workplace. States like California, Connecticut, Arkansas, etc have rock-solid discrimination laws; however, transgenders of other orthodox states might fall into the cracks.
 Moe Vela, who served as a senior advisor on LGBT affairs to former Vice President Joe Biden, said “I don’t know of any decent excuse or rationale for having let that sit on the books,” Vela said. “There’s always been a special kind of place for small businesses in the legislative process, but I don’t understand how that protective spirit can translate in any way to allowing them to discriminate against employees based on who they love or what gender they identify with.”
The uncertainty concerning sex-segregated bathrooms, locker-rooms, and dress codes, the question that whether title VII forces the employer to violate their religious conviction and whether the doctrine of religious liberty supersedes the right of equality appeared as another hard nut to crack. The court delivered a point-blank statement that “to forejudge any future question is uncalled-for as no such laws exist before us presently.”
Justice Alito said that regardless of how much the court wishes to dodge all the prospective ramifications of the verdict, these shortcomings are a matter of grave concern to those who use the same toilet facilities in the company of a few individuals who identify themselves as followers of different sex. The experience of watching a person with male genitals in a woman’s washroom can result in serious traumatic and psychological harm. The dissenting opinion of the judges have highlighted the concerns of various organizations raising the argument that due to the expansion of the term ‘sex’ under Title VII, it has set the stage for an attack over the right to religious liberty even surpassing the employment milieu. After an epic landmark judgment, the Supreme Court’s “whenever the need arises” approach has overlooked all the other giant loopholes and has gained heavy criticism.
The ruling laid down by the court promulgated that the law provides equal protection to all irrespective of the sexual orientation of an individual. Since birth, every human being has been conferred with the prerogative of being treated with dignity and respect. The deep-rooted homophobic notions, ultraconservative beliefs against the sexual identity and a process of systematic discrimination against a particular community have not gone away. No wonder, America has come a long way in creating a safer space for all individuals regardless of one’s sexual identity; however, to fulfil the goal of constructing an ideal society still seems to be a Herculean task. Apart from the significance that the judgment itself carries, Justice Gorsuch ideas and reasoning has gained attention all over the world as he left the liberals awestruck and gave a severe blow to the committee of conservatives. He showcased his commitment to literal statutory interpretation. While the ruling provides reassurance to the LGBTQ+ community in the business arena, it has opened the doors of uncertainty in the fields of housing, religious beliefs, medical treatment, etc. The decision is remarkable and noteworthy; however, the battle against unequal treatment is not yet over.




Anjali Busar is a law student at Dr Ram Manohar Lohiya National Law University, Lucknow.


In Content Picture Credit: Yahoo

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  1. […] Busar, Supreme Court’s decision in the case of Bostock v. County: a crowning glory, yet not enough?, IJLPP IL […]

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