There is considerable conversation, on all sides of the issue, surrounding a 6-3 supreme court decision today recognizing “gay” and/or “transgender” persons as being protected by the 1964 civil rights act under the definition of “sex”.  Factually, the decision authored by Judge Gorsuch writes those terms into the legislative definition; that’s a problem.

However, that said, for all practical purposes and intents, sexual orientation has been a protected employment category -as viewed by the Dept. of Labor and EEOC- since the mid-90’s. So some of the over-the-top exclamations, in both directions, are moot amid the world of practical application.

As to the issue of SCOTUS usurping the legislative responsibility for the practical wording of law, yes, this ruling is an issue, and Judge Alito is absolutely correct in all corners of his dissent.  Justice Gorsuch has opened a can of worms for downstream consequences unrelated to employment eligibility; and a myriad of potential future cases based on gender orientation are likely to flow to the court; so the big picture is problematic.

All arguments surrounding the issue of SCOTUS writing legislation through the delivery of opinion are merited and worthy.  However, on the specific application of ‘gender’ to employment eligibility, today’s ruling was already in place.  Amy Howe has a good encapsulation at SCOTUS Blog:

“Today the Supreme Court, by a vote of 6-3, ruled that even if Congress may not have had discrimination based on sexual orientation or transgender status in mind when it enacted the landmark law over a half century ago, Title VII’s ban on discrimination protects gay, lesbian and transgender employees. Because fewer than half of the 50 states currently ban employment discrimination based on gender identity or sexual orientation, today’s decision is a major victory for LGBT employees.”

[…] Gorsuch framed the question before the court as a straightforward one: “Today,” he wrote, “we must decide whether an employer can fire someone simply for being homosexual or transgender.” The answer to that question, he continued, “is clear.” When an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

[…] Justice Samuel Alito filed a sharp dissent that was joined by Justice Clarence Thomas. While conceding that the result that the majority reached “no doubt arises from humane and generous impulses,” Alito stressed that there “is only one word for what the Court has done today: legislation.” He compared the majority’s opinion to a “pirate ship,” writing that although it sails “under a textualist flag” – that is, it purports to adhere to the text of Title VII – “what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that court should ‘update’ old statutes so that they better reflect the current values of society.” “If the Court finds it appropriate to adopt this theory,” Alito complained, “it should own up to what it is doing.”  (read more)

In the bigger picture, because Title VII as drafted does not protect gay and lesbian employees, nor does any honest review of the 1964 statute imply such a definition, the responsibility to amend Title VII belonged to congress and the president in the legislative process, not to the Supreme Court.  That’s the bigger problem with the SCOTUS decision.

Congress should be, and is, responsible for defining the term “because of sex” as it applies in the original legislation; as it was written to eliminate employment discrimination.  What the supreme court did today was textually, and arguably constitutionally, outside the parameters of their role.

The only modicum of upside optimism stems from reminding ourselves that practically speaking the ruling today was already, technically, in place. The executive branch already viewed sex-based employment discrimination as against EEOC rules.  However, the severe downside is further movement toward legislation being created by the courts.

I think Justice Alito is correct… The Supreme Court has just opened themselves up to a lot more work coming on their calendar.