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BOSTOCK Part II - Alito's Troubling Dissent

Yesterday, the Supreme Court held in a 6-3 decision, Bostock v. Clayton County, No. 17-1618 (U.S. June 15, 2020), that Title VII prohibits discrimination in employment on the basis of sexual orientation and gender identity or expression.  Much has been written on the significance of the decision to LGBTQ rights.  I want to focus on a troubling aspect of Justice Alito’s dissent.

 

Justice Alito, joined by Justice Thomas, accuses the majority of legislating and spends a considerable amount of time explaining why the majority, in his view, is wrong.  He is a bit sharp at times, but this is typical fare in a dissent concerning a hot-button issue.

 

In section IV of his dissent, however, he takes a disturbing turn when he chastises the majority for failing to consider the “far-reaching consequences” of its decision.  After complaining that the Court has “impeded—and perhaps effectively ended—any chance of a bargained resolution” of his concerns (which ignores the fact that Congress can amend statutes in response to Court rulings), he states:

 

"As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety.” 

 

(Emphasis added.)

 

It is quite clear that by “personal privacy and safety,” he means the use of bathrooms and locker rooms by transgender people who do so consistent with their gender identity since those are the first entries in his parade of horribles.  This is an echo of the specious argument made in North Carolina and elsewhere that permitting transgender people to use the facility consistent with their identity will allow men to enter the women’s room under pretense so they can commit sexual assault.  That there is no evidence of people misusing the public accommodations law for this nefarious purpose does not deter the argument.  Indeed, some 20 states include gender identity and expression in their fair public accommodations laws, so if this was a real problem, there should be lots of examples.  There aren’t.

 

Worse, this argument ignores the real safety concerns transgender people face. In 2019, at least 26 transgender and nonconforming people, the majority of whom were black, were killed.  Fourteen transgender and nonconforming people have been killed so far in 2020. https://www.hrc.org/resources/violence-against-the-trans-and-gender-non-conforming-community-in-2020.  I confess I have not read the amicus briefs in Bostock, but I would be surprised if none discussed the violence against the LGBTQ people.

 

To be blunt, what does Justice Alito think is going to happen when a trans woman goes into the men’s room (because she was assigned male at birth)? And are women going to be happy when a trans man goes into the women’s room (because he was assigned female at birth)? Justice Alito’s position ignores real safety concerns, as well as dignity concerns.

 

Notably, Justice Kavanaugh did not join Justice Alito’s dissent.  Justice Kavanaugh disputed the majority’s construction of the language and asserted that the task of amending Title VII belonged to Congress. His dissent focused on process and does not mention policy.  The closest he comes is the end where he acknowledged that gay people “have advanced powerful policy arguments and can take pride in the result.”  While Justice Kavanaugh does not mention transgender people, that he shows sympathy with at least some of the plaintiffs suggests that Justice Alito’s dissent parade of horribles was not one he was willing to join.

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