What the Supreme Court's Bostock decision means for the ACA -- and what the dissents signal for progress.

On the evening of June 12, the Kulanu Committee at our synagogue, Temple Emanuel of Kensington MD, conducted its annual Pride Service on Zoom.  Earlier that day, the Trump Administration announced that it had "finalized a rule that would remove nondiscrimination protections for LGBTQ people when it comes to health care and health insurance." 

When our Temple participants (including LGBTQ+ teens) met in advance of the service, everyone expressed the fear that this new Trump action could negatively impact their and others' ability to secure health care services.  My initial take on the matter was that I thought that Maryland state law would still protect them, as local and state policies had provided protection notwithstanding the Trump Administration's withdrawal of the Obama Gender Identity Guidelines for public schools in 2017 (see here), but I was not sure and said I would try to find out. 

BACKGROUND:  In 2016, the Obama Administration issued a rule making it clear that Section 1557 of the Affordable Care Act (ACA), which made it illegal to discriminate on the basis of a number of reasons, including "sex", applied to discrimination based on sexual orientation or gender identity.   (The ACA's non-discrimination provision incorporated the definitions from three other earlier statutes, including Title IX of the Education Amendments of 1972, which included "sex" as a basis upon which there could be no discrimination.  The Trump Executive Order asserted that the Obama Administration had unlawfully interpreted the term "sex" to extend to sexual orientation and gender identity, and thus its new Executive Order stated that the ACA's anti-discrimination provision did not apply to LGBTQ+ people.   

BOSTOCK DECISION FROM THE SUPREME COURT:  Three days later, on June 15, while I was trying to assemble the various Maryland laws, the United States Supreme Court issued its decision in Bostock v. Clayton County, Georgia, ruling 6-3 that Title VII of the Civil Rights Act of 1964, barring employment discrimination based on, among other things, "sex", covered sexual orientation and gender identity.  Because the decision was based entirely on the Court's understanding of the word "sex" as a matter of statutory construction, the impact of this decision on statutes using the same term -- like Title IX (and, by its incorporation into Section 1557 of the ACA) -- is plain.  All federal statutes barring discrimination based on "sex" encompass discrimination based on sexual orientation or gender identity. See, for example, here.

So it seems clear that the concerns expressed by our teens and their parents the evening of June 12 were satisfied by the Supreme Court's June 15 Bostock decision. 

(I subsequently determined that three Maryland laws, the Fairness for All Marylanders Act of 2014 and two statutes passed in the recently-completed session of the Maryland General Assembly (SB872/h8959 and SB738/HB1120 taken together provide all the anti-discrimination protections that the Obama ACA rules set forth, even if the Trump Executive Order was (which it is not) a legitimate re-interpretation of the ACA. (Thank you to Delegate Anne Kaiser and Metro DC PFLAG Co-Advocacy Chair for Maryland Mark Eckstein for tracking down the 2020 laws.)  So even if the Trump Administration continues, in the face of Bostock, to argue that the word "sex" in the ACA does not apply to sexual orientation and gender identity, state law protects people in Maryland.)  

POST-SCRIPT ON BOSTOCK:  In reading Bostock, I was particularly struck by what dissenting Justices Alito and Kavanaugh wrote about the struggles of LGBTQ+ people for fair treatment.  While taking the view that it was dispositive that Congress never intended in 1964 to cover sexual orientation and gender identity, these two extremely socially conservative justices wrote in terms that are sympathetic to the plight in which LGBTQ+ people have found themselves due to discrimination.

At p. 28 of his dissent, Justice Alito states that "[f]or most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time."  He then catalogues a long series of discriminatory laws as support for his legal analysis of what Congress intended in 1964, even as he suggests these laws might have been unjust.  At p. 54, he concludes as follows:  "The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is."  However crabbed Justice Alito's statutory analysis might be, his characterization of LGBTQ+ people's struggle is the opposite of the vitriol we are accustomed to hearing from right-wing culture warriors.

Likewise, the language from Justice Kavanaugh, at p. 2 of his dissenting opinion:  "Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court. The political branches are well aware of this issue. In 2007, the U. S. House of Representatives voted 235 to 184 to prohibit employment discrimination on the basis of sexual orientation. In 2013, the U. S. Senate voted 64 to 32 in favor of a similar ban. In 2019, the House again voted 236 to 173 to outlaw employment discrimination on the basis of sexual orientation. Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law. The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans 'cannot be treated as social outcasts or as inferior in dignity and worth.' [emphasis added] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9). But we are judges, not Members of Congress."  

Justice Kavanaugh concludes his dissent (at p. 27) with this:  "Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result." (emphasis added)

Again, hardly the rhetoric of the bigoted right-wing. 

So what to make of the dissents?  One of the things we have learned is that the Supreme Court often is reflective of the zeitgeist of the nation.  Supreme Court Justices are often not immune from the changes in cultural norms.  When those whose personal and/or ideological discomfort with LGBTQ+ people begins to wane or reverse as they learn more about the human condition, then progress becomes not as difficult.  There is much to be depressed about with the current Supreme Court.  And we will be infinitely better off if the next crop of appointees to the Court are appointed by Joe Biden rather than Donald Trump. But we should not ignore the small glimmers of progress, even as we work for greater and swifter progress.