How Neil Gorsuch’s LGBTQ+ Rights Decision Goes Against Conservatives’ Multi-Million Dollar Plan

In a striking victory for LGBTQ+ rights, the Supreme Court ruled on Monday that the sex-discrimination provision enshrined in Title VII of the Civil Rights Act extends to gay, lesbian, and transgender Americans — granting vital protections to workers who could have been otherwise ostracized based on their sexual orientation or gender identity.

This victory for the LGBTQ+ community comes just a few days after Trump and his administration sought to roll back protections for transgender people in the Affordable Care Act by shrinking the definition of sex discrimination.

Advocates continue to fight back on the Trump administration's efforts to diminish these protections, citing historic cases of discrimination. The case that prompted the decision, Bostock v. Clayton County, centered around a Georgia man named Gerald Bostock who was fired from his job as a child-welfare advocate after his coworkers learned of his participation in a local gay softball league. The decision was carried out in a 6-3 ruling, with Justices John Roberts and Neil Gorsuch siding with the court’s progressive justices in the majority opinion. 

The ruling is clarifying for several reasons: For one, it has ripple effects that will surely be felt in another yet-to-be-ruled on case, R.G. & G.R. Harris Funeral Homes v. EEOC, in which the transgender plaintiff also argued that her firing on the grounds of gender identity ran afoul of Title VII’s sex-discrimination provision.

But Gorsuch’s decision in particular has also drawn the ire of the same conservative activists who once raised millions to secure his seat on the bench in the hopes that he would help to advance the conservative agenda in rulings on landmark cases.

Installing conservative justices on the Supreme Court is, after all, a multi-million dollar project — one that the activists bankrolling it often claim as the one redeeming quality of a Trump presidency. Sure, Trump might be an uncouth serial philanderer who would use the presidency shamelessly for his own personal enrichment, they argue, but his ability to appoint conservative justices could potentially do more to advance a right-wing doctrine than any one piece of legislation ever could.

But Gorsuch’s decision to side with progressive justices — which he has claimed stemmed from a “textualist” interpretation of Title VII — upends that theory.

Ironically, textualist judicial philosophy is usually favored by conservatives: It means interpreting the precise intent of a given statute at the time it was written, rather than viewing the language through a modern lens in order to better reflect the current values of society. But Gorsuch argued in his decision that employers who would seek to discriminate against gay or transgender employees would have to necessarily make judgments about them based on their sex—meaning that, in this case, a more conservative textual analysis would actually put you on the side of LGBTQ+ rights.

“Have no doubts about what happened today: This was the hijacking of textualism,” Carrie Severino, the president of the Judicial Crisis Network, wrote on Twitter shortly after the decision came down. The Judicial Crisis Network reportedly spent $10 million on efforts to guarantee Gorsuch’s confirmation in 2017, and another $10 million to secure Justice Brett Kavanaugh’s spot on the bench in 2018

 “You can’t redefine the meaning of words themselves and still be doing textualism,” Severino continued. “This is an ominous sign for anyone concerned about the future of representative democracy.” 

Although conservatives might be disappointed now, and liberals might be praising Gorsuch now, they should take heart: The Supreme Court is still set to take up a major challenge to the landmark Roe v. Wade decision this term, meaning that Gorsuch will have plenty of time to make up for any love lost in the Republican party.