US Supreme Court, 590 US_ (2020)
As Europeans, it is easy for us to assume that we have nothing to learn from the USA when it comes to anti-discrimination law. Surely a legal system which tolerated de jure racial segregation until 1965, and which was still prosecuting gay men in the 1990s, has nothing to teach the nations of Europe, with their well-established and comprehensive codes of equality laws? Well, perhaps. But it is worth remembering that it was not always the case that, where Europe led, the USA (in due course) followed. The core concept of indirect discrimination, now so well entrenched in European (and, of course, English) anti-discrimination jurisprudence, was first articulated by the US Supreme Court in Griggs v Duke Power Co (401 US 424, (1971)) and found its way into the Sex Discrimination Act 1976 largely as a result of Roy Jenkins and Anthony Lester’s visit to the USA in 1974. The problems of proving discrimination, and the need for some tweaking to the ‘traditional’ burden of proof as a result, were first recognised not in the Burden of Proof Directive (97/80/EC), but in the US Supreme Court’s decision in McDonnell Douglas Corp v Green (411 US 792 (1964)). And, of course, Sandra Day O’Connor was appointed to the US Supreme Court some 22 years before Brenda Hale was appointed a Lord of Appeal in Ordinary…
So much for the past, what of the present? That brings us to Gerald Bostock and Aimee Stephens. He was a child welfare advocate in Clayton County, Georgia. After 10 years’ employment he joined a gay softball league. He was fired from his employment for ‘conduct unbecoming’ a county employee. She worked at a funeral parlour in Michigan. She was fired when she told her employer she planned to live and work as a woman, having previously presented as a man. In Bostock v Clayton County 590 US_ (2020), the US Supreme Court decided, by a 6-3 majority, that under Title VII of the Civil Rights Act 1964, discrimination “because of…sex” includes discrimination because of sexual orientation or gender identity. For Justice Gorsuch, delivering the majority judgment, ‘sex’ means (or meant in 1964) biological distinctions between men and women and the phrase ‘because of’ means but-for causation. So, “if the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee”, it violates the statute. So far so good. However, for Justice Gorsuch it naturally follows that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” He gave a hypothetical: If an employer fires a man for being attracted to men, but not a woman for being attracted to men, then it discriminates because of sex. End of. Sex, sexual orientation and gender identity are in this sense “inextricably bound up”. So, “…an employer who fires an individual for being homosexual or transgender fires that person for traits or action it would not have questioned in members of a different sex” and that is “exactly what Title VII forbids”.
Justice Alito, in an angry dissent, was having none of it. The majority’s analysis of the statutory language was “a brazen abuse of our authority” and “preposterous”. The judgment is lengthy but, in summary, his position was that (i) ‘sex’ meant only biological sex to both the drafters of the Civil Rights Act and to ordinary Americans in 1964, (ii) ‘sex’ is conceptually distinct from both ‘sexual orientation’ and ‘gender identity’, (iii) therefore “discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender”, (iv) Justice Gorsuch’s hypothetical uses the wrong comparator – the appropriate comparison in that situation is a man attracted to members of the same sex and a woman attracted to members of the same sex; both would be fired, (v) Congress could have, but did not include sexual orientation and gender identity in the list of protected characteristics in the Civil Rights Act, and it is not for the court to rewrite the Act to do what the legislature will not.
There is a lot that is fascinating about Bostock, not least that it was Justice Gorsuch – Trump appointee, intellectual disciple of Justice Scalia and committed ‘textualist’ – who wrote the (robust) majority judgment (joined by, among others, the normally conservative Chief Justice Roberts). For present purposes, though, I would like to draw attention to the fact that this particular battle – whether the word ‘sex’ includes ‘sexual orientation’ and ‘gender identity’ as a matter of statutory interpretation – was fought in the courts of England and Wales and the EU in the 1990s. The outcome was something of a curate’s egg. In P v S & Cornwall County Council (C-13/94)  ICR 1795 the ECJ appeared to take a broad view of the meaning of ‘sex’ in the Equal Treatment Directive in holding that dismissal of an employee who informed her employer that she intended to undergo gender reassignment was “based, essentially if not exclusively, on the sex of the person concerned…[as] he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.” Although the reasoning is somewhat compressed, this appears to be much the same as the majority approach in Bostock, albeit that the ECJ sailed under the flag of purposive statutory interpretation, not textualism. P v S was followed in a number of pension-benefit cases regarding transgender individuals: KB v NHS Trust Pensions Agency (C-117/01)  ECR I-541 and Richards v Secretary of State for Work and Pensions (C-432/04)  ICR 1181.
So much for gender identity, what about sexual orientation? In a series of cases – R v Ministry of Defence, ex parte Smith  QB 517, Grant v South West Trains (C-249/96)  ICR 449 and Pearce v Mayfield School  ICR 198 and  ICR 937 (HL) most notably – domestic courts and the ECJ decided that discrimination on grounds of sex did not include discrimination on grounds of sexual orientation. The position taken in the English courts was essentially that of Justice Alito in Bostock. Simon Brown LJ in ex parte Smith said that an employer who refused to employ gay men but would employ lesbians might discriminate on grounds of sex, but an employer who refused to employ both would not. Lord Bingham said there was “nothing whatever in the EEC Treaty or in the Equal Treatment Directive which suggests that the draftsmen of those instruments were addressing their minds in any way whatever to problems of discrimination on grounds of sexual orientation”. The ECJ in Grant said (contrary to the Advocate General) that a policy which permitted travel concessions for those in different-sex relationships but denied them to those in same-sex relationships did not constitute sex discrimination: “the condition imposed by the employer’s regulations applies in the same way to female and male workers [so] it cannot be regarded as constituting discrimination directly based on sex”. The Court went on to say that it was for the legislature alone to adopt measures which may affect the position. In Pearce, while Lady Justice Hale said (obiter) that the Sex Discrimination Act 1975 could be read down under s.3 Human Rights Act 1998 such that “the comparator is not a heterosexual person of the same sex as the [Plaintiff] but a heterosexual person of the opposite sex (as in Justice Gorsuch’s hypothetical), she also said that the Court was bound by previous authority and the lack of retrospective effect of the HRA to accept that could not be done in Ms Pearce’s case. Lord Justice Judge said that he did not agree with what Hale LJ had said about the appropriate comparison in any event. When the case got to the House of Lords it was decided authoritatively that the appropriate comparator for a homosexual man claiming sex discrimination was a homosexual woman (and vice versa). The sexual orientation of the individual complaining of discrimination was the relevant circumstance which could not be disregarded for the purposes of making the comparison the statute requires (it is worth noting that the Civil Rights Act 1964 has no equivalent provision to what is now s.23 Equality Act 2010). If comparative law was de rigueur in the US Supreme Court (which it is not), Justice Alito could have cited the unanimous Appellate Committee of the House of Lords in support of his position in Bostock.
In the EU, and consequently in the UK, the position was of course ultimately resolved through legislation, now embodied in the Framework and Equal Treatment Directives and the Equality Act 2010. In the face of legislative silence, the courts in the 1990s felt largely unable to act themselves. In the US there is still no such legislation at the federal level – although not for want of trying. Would the UK courts be bolder if a similar situation obtained? Bostock perhaps shows that judicial reticence in the face of legislative silence will only last so long.