The United States Supreme Court’s ruling in Bostock v. Clayton County* continues a trend of victories for LGBTQ+ advocates. The Court ruled that Title VII of the Civil Rights Act prevents employers from discriminating against employees based on sexual orientation or gender status. The decision fits comfortably with recent precedent, but it is surprising given the Court’s current composition. Justice Neil Gorsuch, who was President Trump’s first appointment to the high court, wrote the majority opinion, and he was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, and Sotomayor. Justices Alito, Kavanaugh, and Thomas were in dissent.

This outcome has unnerved Republicans, especially those who supported President Trump primarily due to his potential Supreme Court appointments. To see Gorsuch, generally thought of as one of the most traditional members of the Court, hand a significant “culture war” victory to the LGBTQ+ community has frightened some religious conservatives.

Much of this misses the point, I think. The LGBTQ+ community is celebrating, but Gorsuch’s reasoning may not be groundbreaking in the long run. Wary Evangelicals need to understand the nature of Title VII’s religious exemptions.

Title VII of the Civil Rights Act bars employment discrimination on the basis of “sex.” Gorsuch, using a narrow, textual argument, ruled that refusing to hire or firing a homosexual or transgender employee, in the end, flows from discrimination on the basis of sex. For example, as he notes, if a male and female employee bring female spouses to a company party, any action against the female employee is based on her sex, because the male employee, who also brought a female, was not punished, while the female was. So, even though sexual orientation may be the root of the action, discrimination based on sex is inherent to the employer’s decision.

Alito’s dissent makes what feels like an unanswerable argument. While Gorsuch’s reasoning is logical, it ignores that likely none of those who wrote the statute, or those who first enforced or interpreted it, would have considered “sex” to encompass sexual orientation or transgender status. Members of Congress have attempted to amend Title VII to include protections for sexual orientation and transgender status, so Gorsuch’s argument would be news to them. For Alito, Gorsuch displays the difference between slavish textualism that veers into literalism, and originalism, which relies on both text and context to define a word or concept.

There are a few things to consider as we judge Bostock’s possible impact. This argument, between traditional, or conservative, methods of interpretation, shows how far at least a clear majority of the Court has moved in jurisprudence. This decision, and the reasoning employed, is disconnected from past Supreme Court rulings that examine LGBTQ+ rights especially in a constitutional setting. While Alito claims the majority’s textualism is a pretense, even the pretense is far removed from claims of human dignity, or the dispositive nature of the spatial dimensions of liberty.

Given that Bostock is statutory, Congress can remedy this if it chooses. Bostock does not create a right and then separate it from the political process, as happened in Obergefell and Lawrence. Granted, I doubt Congress will change the law, but the fact it can makes this less of a landmark.

There are ample grounds for the protection of religious liberty. Title VII has exemptions for small businesses (less than 15 employees), private clubs, and religious corporations, associations, and educational institutions. Additionally, as Gorsuch noted, if there is a conflict between this interpretation and religious interests, the Religious Freedom Restoration Act can be brought to bear if religious exercise is substantially burdened. Hobby Lobby won its case against the federal government using RFRA, and it is a large, closely-held corporation. Similar protections should be extended to other religious enterprises. Conflicts will come, but Gorsuch signals his intent with such conflicts. (Of course, unless Chief Justice Roberts joins him, as well as Alito, Thomas, and Kavanaugh, it is possible there would be five progressive votes against such religious claims.**)

There is also the possibility that this will be more of a clear win for gay rights but a bit of a mess for transgender activists. Gorsuch reasoned that transgender employees are protected against discrimination on the basis of sex and not solely on their transgender status. This analysis not only assumes the importance of biological sex, it elevates it. Actions, be they public or private, that affect those who are transgender could be justifiable if they are rooted in something other than sex. We will see.

Finally, this is a lesson in the politics of Supreme Court appointments. Neil Gorsuch is probably still staunchly traditional as he approaches a case, but that traditionalism can cut in different directions. Scalia, the justice he replaced, often voted with progressives on the Court on Fourth Amendment cases, for instance, which undermined typical conservative deference to law enforcement officers. Neither Gorsuch nor Kavanaugh should be assumed to be “reliable” or “locks” when it comes to Court decisions that revolve around culture war issues. Republicans, for decades, have struggled to replicate the reliability of Democratic appointments. While Gorsuch may prove to be generally “reliable” for conservatives, there is no guarantee of this.

*This case was consolidated to also include Altitude Express, Inc. v. Zarda and Harris Funeral Homes v. E.E.O.C.

**There is a chance that Roberts joined the majority so he could assign the opinion to Gorsuch. I can imagine that a Gorsuch opinion here reads pretty differently from what we might see from Ginsburg, for example.