To the editor:

Title VII of the landmark Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. The meaning of "sex" in the statute was biological and did not apply to sexual orientation or identity. But in Bostock  v Clayton County (2020) the Supreme Court ignored congressional intent and rewrote Title VII.

Bostock focused on whether someone could be fired from their job for being gay, lesbian or transgender. Despite repeated and failed attempts by liberal members of Congress to amend Title VII to include LGBT, the court concluded that sexual orientation and gender identity now fell within the law's prohibition of discrimination based on sex. Joining the four liberals in the majority were Chief Justice Roberts and Trump appointee Justice Gorsuch.

Although limited to employment discrimination, Bostock has already been used as a precedent by lower federal courts to extend the ruling to apply to transgender boys using boys' bathrooms, transgender girls competing in women's athletics, and preventing discrimination against transgender patients under the Affordable Care Act. All of these decisions are subject to review by the Supreme Court, but to reverse the lower court decisions the court would have to renounce the logic of its Bostock opinion.

Next term, the Supreme Court will hear oral argument in Fulton v City of Philadelphia. This case involves a conflict between the court's reasoning in Bostock and the First Amendment's free exercise of religion clause. The question being, may the city of Philadelphia cut off referrals of foster children to Catholic Social Services because the agency will not certify same-sex couples as foster parents. The court's decision could prove to be a pivotal moment in America's culture war.

Voorhees Dunn, PhD


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