There was a great deal of justified rejoicing on Monday after the Supreme Court handed down what is probably the biggest victory for LGBTQ people in American legal history in Bostock v. Clayton County.
In a 6-3 majority decision written by conservative Neil Gorsuch, the court ruled that Title VII of the Civil Rights Act protects gay and trans people from workplace discrimination. This needs to be placed in the proper context. It does not mean that discrimination has gone away, or that, in a world of economic precarity, at-will employment and weak unions, employers won’t necessarily find another way to fire someone. The Supreme Court is not God. There is, as ever, a difference between what the law says and what actually happens to people. The revolution has not arrived. The battle is not won.
But Bostock is still a big deal, even within these constraints. It is a dramatic expansion of LGBTQ legal rights in a country where just over half of all states didn’t shield people from being fired because of their sexual orientation or gender identity. Since it deals with the workplace, it is, arguably, a much more important decision in terms of its practical impact than Obergefell v. Hodges, which legalized same-sex marriage nationwide.
Many people pronounced themselves surprised by the Supreme Court decision. I can’t honestly say I was one of them. I was happy and relieved that the court ruled the right way, but the idea that there were five justices eager to deal such a hammer blow to LGBTQ people always seemed strange to me, for the simple reason that there hasn’t been that kind of a majority on the court for nearly 20 years. Since 2003, the court has been on a relatively solid glide path when it comes to LGBTQ rights, ruling over and over again in favor of expanding them. (Even the exceptions to this rule have been seen as not a huge deal by legal observers.) Anthony Kennedy’s departure might have changed things, but it felt like things had come too far for the court to turn back now. That proved to be the case; clearly, the court has made a decision about its basic principles in this area, and it is not prepared to deviate from them.
Now why might that be? Legal experts have already delved into the reasoning behind the decision, and that’s important. But it’s equally important to remember that the Supreme Court is a deeply political institution, every bit as soaked in politics as Congress or the White House. The court has been on a dizzying journey; in the space of 34 years, it has gone from supporting bans on gay sex to striking down workplace discrimination against trans people. As it happens, that’s exactly the same journey that the U.S. as a whole has been on. In virtually every recent major LGBTQ rights decision, the court has actually been following public opinion, not shaping it. Monday’s decision was no different:
Those numbers are overwhelming, and, crucially, bipartisan. For the public, this matter was already beyond settled. It is not a radical issue; it’s actually about as mainstream as it gets. The justices were almost certainly aware of this, and you would be naive to think that didn’t influence their decision. To put it simply, it would have been political malpractice for them to rule the other way in Bostock.
Now why might that be? You know the answer to this one: protest. There has been a mass queer civil rights movement for decades, and while the struggle is very far from over, especially for trans people, the movement has still made incredible gains, both politically and in terms of shifting public attitudes. Among other things, it has been powerful enough to keep an increasingly reactionary Supreme Court in line year after year after year. (It is also very useful for the court to generate this kind of goodwill even as it shows its monstrousness in other areas — we cannot expect the same generosity in its upcoming rulings on DACA and abortion, for instance — yet even that sickening reality is a measure of the relative strength of the queer movement.)
Some might object to this rather craven characterization of the court’s motives, but it doesn’t take a conspiracy theorist to understand that the work of the court is ultimately politics, not the law. The justices routinely toss their supposedly long-held principles overboard at the drop of a hat in favor of naked partisanship. John Roberts ruled against same-sex marriage in 2015 but in favor of equal workplace protections for queer people in 2020. He could surely give you his legal reasoning for such an incoherent set of stances, but the reality is that he was making a political decision in both cases, just as he did when he abandoned his fellow conservatives on the court to uphold Obamacare in 2012.
What this all shows, yet again, is that movements matter, that protest works, and that everyone in the streets right now should keep up the struggle. It may seem like an impossible fantasy to suppose that we will ever be able to abolish police, but think about what happened on Monday. A far-right Supreme Court delivered, by a large majority, the most sweeping queer rights decision in living memory. It had no other choice. That is what movements can do. And, as Angela Davis recently pointed out in a now-viral video, the trans movement specifically has profound lessons to teach when it comes to abolitionism:
I don’t think we would be where we are today, encouraging ever-larger numbers of people to think within an abolitionist frame, had not the trans community taught us that it is possible to effectively challenge that which is considered the very foundation of our sense of normalcy. So if it is possible to challenge the gender binary, then we can certainly effectively resist prisons and jails and police.
What she said. The Supreme Court did not gift anyone their rights, now or ever. People won those rights for themselves. It has been done and it can be done again.