Bostock Bears Bad Fruit

Since the 1970s, LGBT activists have attempted to pass a federal law that would treat sexual orientation as a protected civil rights category. The Employment Non-Discrimination Act (ENDA), which passed the House of Representatives in 2007, would have made it unlawful for employers with 15 or more employees to discriminate based upon sexual orientation. More recently, “transgender” issues have been added to the agenda; the Equality Act, which passed the U.S. Senate in 2013, would have banned discrimination on the basis of sexual orientation and gender identity in employment, housing, and public accommodations.

It turns out, however, that the activists could have saved themselves the trouble. According to a majority of the Supreme Court—including Justice Neil Gorsuch and Chief Justice John Roberts—workplace discrimination on the basis of sexual orientation and gender identity is already illegal and has been for 56 years. As Albany Update reported some weeks ago, the Court’s Bostock v. Clayton County, Georgia decision holds that the ban on workplace sex discrimination contained in Title VII of the Civil Rights Act of 1964 also bans workplace discrimination based on the phony categories of sexual orientation and gender identity. Writing for the majority, Justice Gorsuch argued that it is impossible to discriminate on the basis of sexual orientation or gender identity without also discriminating on the basis of sex.

As PJMedia has pointed out, Justice Samuel Alito predicted that the Bostock decision might have challenging implications in the realm of health care benefits. According to Justice Alito, “‘[s]uch claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.’” The Justice may be correct. The American Civil Liberties Union (ACLU) recently sued a Catholic hospital (St. Joseph Medical Center in Maryland) that declines to perform so-called “sex reassignment” surgeries in which the healthy uteruses of “transgender” individuals are removed. While the lawsuit in Hammons v. University of Maryland Medical System (UMMS) is not an employment discrimination case (it asserts claims under the First and Fourteenth Amendments and under the Affordable Care Act), it cites the Bostock decision in support of its claims.