JUSTICE ALITO'S LAUNDRY LIST: HIGHLIGHTS FROM APPENDIX C OF BOSTOCK AND A ROADMAP FOR LGBTQ+ LEGAL ADVOCATES.

AuthorQuinn, Peter

TABLE OF CONTENTS INTRODUCTION 885 I. BACKGROUND ON BOSTOCK V. CLAYTON COUNTY 887 A. Justice Gorsuch's Majority Opinion 887 B. "Dueling Textualisms" 888 II. JUSTICE ALITO'S APPENDIX C 889 A. "Far-Reaching Consequences" and Appendix C 890 B. Reactions and Rationales 892 C. Catagorization of Appendix C 894 III. "SMALL POTATOES": LIMITED IMPACTS AND FEW OPPORTUNITIES 895 A. Statutes of Little Consequence or Potential Impact for Expanding LGBTQ+ Protections 895 B. Statutes That Directly Incorporate Title VII or Other Nondiscrimination Provisions in Employment 898 IV. THE "BLOCKBUSTERS": OPPORTUNITIES FOR IMPACT LITIGATION 898 A. Education 899 B Helthcare 903 V. "UNDER THE RADAR": POLICY AREAS DESERVING OF MEANINGFUL ATTENTION POST-BOSTOCK 906 A. The Legal System 907 1. Jury Service 907 2. "LGBTQ+ Panic" Defenses 908 B. Foreign Policy 909 1. Foreign Affairs 910 2. Immigration 911 C. Credit and Lending 913 D. Housing 915 CONCLUSION 917 INTRODUCTION

In June of 2020, the Supreme Court released its opinion in Bostock [upsilon]. Clayton County, with a six-Justice majority holding that the sex-based protections of the Civil Rights Act of 1964 also protected individuals based on their sexual orientation or gender identity. (1) Authored by Justice Gorsuch, the majority opinion relied on a textualist approach, reasoning that discriminating against a person based on sexual orientation or gender identity must include discrimination based on that individual's sex, thus triggering the text of the Civil Rights Act. (2) LGBTQ+ (3) advocates hailed the decision as a landmark for LGBTQ+ rights in the United States, on par with Lawrence [upsilon]. Texas and Obergefell v. Hodges, which struck down anti-sodomy laws and enshrined the right to marry, respectively. (4)

Three Justices dissented in Bostock; (5) Justices Alito and Kavanaugh wrote opinions taking issue with the majority's approach to a textualist reading of the Civil Rights Act. (6) Textualism and its applications, however, are largely ancillary to the focus of this Note. Instead, Justice Alito's strategy in drafting his dissent, not merely his argument within it, raises several interesting issues worthy of examination.

Justice Alito's dissent is particularly lengthy, owing in part to the extensive appendices included with it. (7) To underscore his contention that the majority's opinion has a wider-ranging impact than it perhaps considered, Justice Alito included in his Appendix C a list of over 150 federal statutes that prohibit discrimination because of sex. (8) Based on the textualist view of the Civil Rights Act taken by the majority, Justice Alito reasoned that these federal statutes would now be subject to a similar analysis, which in his assessment was a grave threat and evidence of judicial overreach. (9)

Upon its release, some LGBTQ+ activists and legal advocates considered this something of an "own goal." (10) Justice Alito, not someone particularly sympathetic to legal efforts to enshrine LGBTQ+ rights, (11) nonetheless provided a roadmap to challenge myriad federal laws that could expand protections for LGBTQ+ people under the Bostock analysis. (12)

After a brief background on Bostock in Part I, the bulk of this Note seeks to examine Justice Alito's Bostock dissent and its potential future usefulness for LGBTQ+ advocates. Part II will analyze Justice Alito's dissent and Appendix C, arguing that his concerns about Bostock's consequences across other federal statutes fall into three primary categories of usefulness. The remaining Parts will survey these categories, including the "small potatoes" in Part III, the "blockbusters" in Part IV, and the "under-the-radar" areas in Part V. Part V takes particular notice of potential applications of Bostock's pro-LGBTQ+ approach to federal statutes that may fall outside of policy areas that typically engender advocates' attention. It is this author's hope that such a categorization can help scholars and advocates accurately gauge the impact of Bostock and the veracity of Justice Alito's complaints. More importantly, however, this categorization will allow advocates to prioritize policy areas that have been largely overlooked as important potential battlegrounds to further expand LGBTQ+ legal protections post-Bostock.

  1. BACKGROUND ON BOSTOCK V. CLAYTON COUNTY

    Bostock represented a major victory for LGBTQ+ legal advocates, (13) who were unsure of how the Court would respond to their novel argument that sexual orientation and gender identity expression amounted to textual sex discrimination, rather than the traditional gender stereotyping and nonconformity doctrine used in employment discrimination cases. (14) The major arguments in the case grappled with how to interpret the text of Title VII of the Civil Rights Act of 1964 (Title VII), a noteworthy exercise for a Court at least one of whose members has declared that "we're all textualists now." (15) Interestingly, the Court's textualists had a difference of opinion in what exactly that meant. (16)

    1. Justice Gorsuch's Majority Opinion

      In placing Bostock on its docket, the Supreme Court consolidated three different cases from the circuit courts where employees had been fired solely based on either their sexual orientation or gender expression. (17) The Second (18) and Sixth (19) Circuits held that firings of a gay skydiving instructor and transgender funeral home employee, respectively, constituted violations of Title VII. The Eleventh Circuit created a split when it found that Title VII did not prohibit such firings, affirming the district court's decision dismissing the suit of Gerald Bostock after his termination from a county child welfare advocate position. (20)

      Title VII does not explicitly protect LGBTQ+ individuals from employment discrimination; it does, however, offer such protections based on sex (among other classifications). (21) The Bostock majority seized on the logic that, had the plaintiffs' sex been different, their expressions of gender identity and attraction would not have resulted in their terminations. (22) Put another way, had Gerald Bostock been a cisgender woman, an attraction to men would not have led to termination. Thus, their sex was a "but for" cause of their termination, triggering the protections of Title VII. (23) Writing for the Court, Justice Gorsuch recognized that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." (24)

      The Court admitted that these cases might have been more difficult had the employers in question obfuscated the true reasons for terminating their employees. (25) Here, though, the employers were very clear that they intentionally fired their LGBTQ+ employees based on their identities and wanted the Court to allow them to do so without triggering Title VII. (26) It is certainly possible that, post-Bostock, employers will become more circumspect in their stated reasons for terminating LGBTQ+ employees, thus limiting the extent of this legal victory. Nonetheless, in "but for" causes like in Bostock, it is clear that LGBTQ+ Americans have employment protections through the lens of their sex, even when other factors come into play. (27)

    2. "Dueling Textualisms"

      Much of the scholarly focus on the Bostock decision centers on the textualist dimensions of the ruling (and dissents). (28) While textualism is not the focus of this Note, a cursory understanding of the "dueling textualisms" (29) of the majority and the dissents is necessary to grasp where Justice Alito's strategy comes from.

      Justice Gorsuch's majority opinion looks to the literal text of Title VII to reach its conclusion that it applies to sexual orientation and gender identity. (30) Such a literal approach, termed "formalistic textualism" by Professor Tara Grove, "focus[es] on semantic context and downplay [s] policy concerns or the practical (even monumental) consequences of the case." (31) Even adopting for the sake of argument a restrictive definition of the term "sex" limited to "biological distinctions between male and female," Title VII's "but-for" cause mechanism is a wide-ranging, "sweeping standard." (32)

      The dissents of Justices Alito and Kavanaugh, however, took the majority to task for "sail[ing] under a textualist flag" (33) but ignoring the ordinary public meaning of the text of Title VII when it was passed in favor of the literal meaning. (34) This understanding is in accord with the traditional proponents of textualism as a theory of interpretation. (35) Such "flexible textualism" begins with a close reading of the text in question and allows judges to "consider[] policy and social context as well as practical consequences." (36) The majority acknowledged this attack, yet it insisted that the construction of the muscular "but-for" cause requirement in Title VII required a literalist reading. (37)

  2. JUSTICE ALITO'S APPENDIX C

    Justice Alito, clearly unhappy with the majority's reasoning and method of textual analysis, penned a "furious" dissent. (38) This dissent attacked the majority's textualist bona fides, (39) but--intriguingly--also argued that the sweep of the Court's holding would extend much farther than the statute before it. (40) To illustrate this point, Justice Alito included a laundry list of "[o]ver 100 federal statutes [that] prohibit discrimination because of sex" among the appendices to his dissent. (41) This Part seeks to understand Justice Alito's argument and his inclusion of Appendix C, consider its purpose, and propose a categorization framework for the statutes within.

    1. "Far-Reaching Consequences" and Appendix C

      Facially, the Bostock majority limited the reach of its decision to Title VII. (42) However, given the easily translatable reading of "but-for" causation for sex discrimination in Title VII, many scholars and observers expect the same textual arguments to apply in litigation involving other statutes with...

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