You could easily read this as a “thank you” note to United States Supreme Court Justice Samuel Alito. The landmark June 15, 2020, SCOTUS ruling in Bostock v. Clayton County, 590 U.S. ____ (2020), held that Title VII’s prohibition on sex-based discrimination in employment extends to the lesbian, gay, bi-sexual and transgender (LGBT) community. Justice Alito was joined by Justice Clarence Thomas in issuing a vociferous, even blustery, dissent decrying the majority’s “[u]surping the constitutional authority of the other branches.” Justice Alito feels that LGBT people should continue to suffer employment discrimination “based on sex” because so-called “constitutional niceties” compel it. Despite Justice Alito’s obvious frustration with Bostock’s sweeping advance for LGBT workplace rights and protections, his dissent provides a meticulous, detailed roadmap to the “virtually certain” promise of full and inclusive LGBT equality in many other areas of law and life.

In Justice Alito’s view, Justice Neil Gorsuch’s majority opinion is legislating from the bench by reinterpreting the plain meaning of “sex” as it was known in 1964 when Title VII was adopted as part of the Civil Rights Act of 1964. Alito’s evidence? That subsequent sessions of Congress, including as recently as last year, had considered, but did not amend Title VII to specifically include the LGBT community under sex-based discrimination protections. By Justice Alito’s logic, the legislature’s failure to add new terms in recent years was dispositive of what sex meant in 1964 or, more precisely, what it did not mean. To put it another way, he believes that modern legislative debates that fail to produce new laws can be transformed into binding, axiomatic pronouncements for interpreting old laws.