AuthorNaftalowitz, Harry "Tzvi"
PositionSutherland v. United Kingdom, Toonen v. Australia

The simplest questions are the hardest to answer. Northrop Frye

The Supreme Court's landmark opinion of Bostock v. Clayton County is now loved and loathed for its broad protection of homosexual employees from employment discrimination. Equally important to the legal scholar is Bostock's approach to statutory interpretation. This article seeks to analyze Bostock's use of textualism through the lens of comparative law. A review of the relevant cases and statutes worldwide suggests that, unlike Bostock, "sex" does not include an individual's sexual orientation. In Bostock v. Clayton County, the Supreme Court concluded that Title VII of the Civil Rights Act of 1964 prohibited employment discrimination against homosexual and transgender employees. (1) Bostock is a blockbuster of a case; its ramifications go well beyond the confines of sexual orientation and transgender employment discrimination. (2) Bostock stands to completely redefine the Court's usage of textualism. (3) Until now, textualism incorporated the context of a statute to properly understand the statute's command. (4) Bostock has effectively supplanted this textualism with a form of hyperliteralism that does not account for the historical and societal context in which a statute was passed. (5) Instead, the static word has become subject to the forces of "living literalism." (6)

Against this backdrop, the broader purpose of this note is to show how comparative law can be an invaluable tool for statutory construction. (7) In particular, this note examines the peculiar nature of Bostock's statutory construction of Title VII through a comparative analysis of sexual orientation discrimination decisions and statutes worldwide. This note attempts to show that the international community's jurisprudence largely would disagree with Bostock's outcome. (8)


    Textualism is defined as "[t]he doctrine that the words of a governing text are of paramount concern and that what they fairly convey in their context is what the text means." (9) While Justice Antonin Scalia is widely heralded (or maligned) as the champion of textualism, textualism has been an important school of thought in American jurisprudence for well over 100 years. (10)

    Numerous considerations support the textualist approach to statutory interpretation, with many of them showcased in Bostock. (11) First, only the words of the statute have survived the scrutiny of both Congress and the President; to allow courts to operate beyond the parameters of the statute's text would violate the American legislative system. (12) Second, textualism creates accountability for elected officials. If judges were allowed to look beyond the statute's text for determinative guidance, judges would functionally be the editors of the final draft of legislation when a case reaches their chambers, thereby obfuscating the legislators' connection to a given statute's impact. (13) Third, the true legislative intent of Congress cannot be conclusively determined, even with the most lucid record of a statute's legislative history. (14) Fourth, textualism's simple approach to statutory interpretation cultivates the public's confidence in America's legal system. (15) Fifth, the simplicity of textualism's approach to statutory interpretation helps the public follow the law with greater case, as the public can rely on the face value of the law when making important personal or business decisions. (16) These considerations have brought us to the current state of judicial affairs; as Justice Kagan remarked, "[w]e're all textualists now." (17)

    In Bostock, a critical component of both the majority and dissent's opinions revolved around the usage of textualism in interpreting statutes. Justice Neil Gorsuch, writing for the majority, wrote that America "is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations." (18) Justice Gorsuch's ode to textualism aside, Justice Alito referred to Justice Gorsuch's opinion as "a pirate ship [that] sails under a textualist flag." (19) A comparative international review of the interpretation and ratification of legislation dealing with sexual orientation discrimination will provide us with a greater understanding of how Title VII should be interpreted, and how we should interpret statutes in general. (20)

    As previously noted, the hallmark of textualism is that statutory construction is confined to the words of the statute. That is not to say that plain-meaning alone triumphs; words are only understood in their context. (21) Bostock illustrates that the ordinary meaning of a statute in conjunction with context may sometimes prove to be elusive. (22) It is in these scenarios that extratextual considerations should be considered--even by the most ardent believer in textualism--but only as a means to decipher the ordinary meaning of the text. (23)

    Understandably, a firm believer in textualism will hesitate, if not scoff, at the prospect of using the international community's jurisprudence to dictate the ordinary meaning of a domestic statute. (24) One of the most obvious issues in performing such a comparative analysis is language barriers. (25) Any earnest attempt to understand foreign law must account for one's lack of proficiency in a given language. Furthermore, the subtleties of a statute are all too easily lost in translation. (26) As such, all of the cases and statutes selected for this note were originally written in English. That is not to say that this is without flaw; certainly, different dialects and cultures may use words differently. (27) For that matter, even within a particular country, different dialects of the same language will not use language uniformly. (28) However, the cases and statutes that follow do not suggest a usage of English different than mainstream American English, thereby justifying our reliance upon these sources. (29)


    The main debate between Justice Gorsuch and Justices Alito and Kavanaugh revolved upon the proper usage of textualism. While both agreed to the same premises--that context and ordinary meaning trump legislative intent--they nonetheless arrived at conflicting conclusions.

    Before we begin our analysis of the majority and dissent in Bostock, a brief introduction to the provision at issue in Bostock is in order. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against a number of enumerated categories of individuals. (30) One of the categories enumerated in Title VII is "sex." Title VII provides examples of discrimination "because of... sex," such as "pregnancy, childbirth, or related medical conditions." (31) A discriminatory employment action violates Title VII when one of the enumerated categories "was a motivating factor for any employment practice, even though other factors also motivated the practice." (32)

    The plaintiffs in Bostock conceded, arguendo, that "sex" in Title VII only refers to an individual's biological sex, not sexual orientation. (33) The question remained whether discrimination on account of an individual's sexual orientation constitutes a form of sexism. Justice Gorsuch explained that the statute prohibits "discrimination," meaning the treatment of an individual worse than others that are similarly situated. (34) To constitute sexual orientation discrimination, this worse treatment must be "because of... sex." The phrase "because of requires the courts to apply a simple but-for causation test, which directs a judge "to change one thing at a time and see if the outcome changes." (35) For an employer to violate Title VII, the employer's actions need not be motivated solely, or even primarily, by the adversely affected party's biological sex. As long as an individual's biological sex was a factor underlying the employer's actions, these actions violate Title VII. (36) As such, Justice Gorsuch opined that only a plaintiff's biological sex should be changed to determine if a plaintiff alleging sexual orientation discrimination was treated worse as a result of his or her sex. (37) In sum, the test for purposes of finding sexual orientation employment discrimination is whether the employer intentionally treated an employee or applicant worse than other similarly situated employees and applicants because of the adversely affected party's biological sex, irrespective of the extent to which the employee or applicant's biological sex played a role in the employer's actions. (38)

    The main takeaway from Bostock's majority, for our purposes, was its use of the textualist canon to interpret Title VII. Justice Gorsuch stated that his construction of the statute was in accord with how the public in the year 1964--the year that Congress passed the Civil Rights Act of 1964--understood the ordinary meaning of Title VII. (39) Despite the unexpectedness and hypothetical repugnancy of the statute's command to the average American in 1964, unambiguous statutory commands must nonetheless be heeded. (40) Therefore, Justice Gorsuch concluded that Title VII clearly protects against sexual orientation employment discrimination. (41)

    One of the main themes of Justice Alito's dissent is the importance of the societal context in which a law comes into existence. (42) Like Justice Gorsuch, Justice Alito held that textualism turns to how the ordinary American at the time of the statute's ratification would have understood the statute in question. However, considering the state of affairs in 1964, Justice Alito concluded that the average American in 1964 would not have fathomed reading a prohibition against sexual orientation employment discrimination into Title VII. (43) He bolstered his position with a historical account of America's openly negative attitude towards homosexuality during that time period. (44)

    Similarly, Justice Kavanaugh considered...

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