Bostock and North Dakota

By Christopher Dodson
Executive Director
North Dakota Catholic Conference
November 2020

Last June, the United States Supreme Court decided in Bostock v. Clayton County that employment discrimination on the basis of “sex” for purposes of the federal Civil Rights Act now includes “sexual orientation” and “transgender” status.

The decision, written by Justice Neil Gorsuch, was much criticized for its tortured logic and for effectively redefining human nature. As the president of the United States Conference of Catholic Bishops, Archbishop José H. Gomez stated: “Every human person is made in the image and likeness of God and, without exception, must be treated with dignity, compassion, and respect. Protecting our neighbors from unjust discrimination does not require redefining human nature.”

Gorsuch’s decision makes several attempts to downplay concerns that this reinterpretation would have far reaching consequences, especially for those with religious objections to equating “sex” with “sexual orientation” and “transgender.” None of which, however, is convincing.

First, he notes that the Bostock decision itself applies only to employment matters under Title VII of the federal Civil Rights Act. That law applies to businesses with fifteen or more employees. However, activists have already filed lawsuits to expand Bostock’s redefinition of “sex” to the hundreds of other federal non-discrimination laws.

Moreover, many states could reinterpret their own nondiscrimination laws similar to Bostock. North Dakota’s discrimination law, known as the Human Rights Act, uses language nearly identical to that used in Title VII. In fact, it was modeled after the federal Civil Rights Act. It applies to all North Dakota businesses of any size.

North Dakota legislators have repeatedly refused to expand the Human Rights Act to include “sexual orientation” and “gender,” but so had Congress. That did not stop activists from using the courts to pursue their agenda. The same could happen in North Dakota.

We do not know for certain how the North Dakota Supreme Court would interpret “sex” in the Human Rights Act. It might, as the U.S. Supreme Court should have done, conclude that because legislators did not intend “sex” to cover “sexual orientation” or “gender” when the law was passed in 1983, the court should not change the law’s meaning now. It could also take note that the legislature has expressly rejected including those terms in the act.

However, the state supreme court could decide that since the state law was intended to mirror the national legislation, “sex” should be reinterpreted in line with Bostock, which would pose problems for religious employers.

Even if the court did not address the issue, there is a very real possibility that state agencies, boards, or commissions could adopt their own interpretation of “sex” to cover “sexual orientation” and “gender identity.” If this occurs it could affect the ability of people and organizations with a different viewpoint from being licensed or from receiving government contracts.

Justice Gorsuch pointed out that the Civil Rights Act expressly exempts religious employers. North Dakota’s Human Rights Act, however, has no religious entity exemption.

Justice Gorsuch also noted that the federal Religious Freedom Restoration Act (RFRA) would make it difficult to apply the ruling to employers with a sincere religious objection. That law says that the federal government cannot substantially burden a person’s sincere religious beliefs unless it has a compelling government interest and does so with the least restrictive means. The Religious Freedom Restoration Act, however, applies only to federal laws.

North Dakota is one of the minority of states that does not have a state RFRA or a court-interpreted state constitutional provision doing the same. It could use one, but until now legislators have either not seen the need or fear being accused of supporting legislation that its opponents will portray as sanctioning discrimination.

There might exist a few constitutional defenses, but those are limited. The ministerial exception protects the right of religious entities to choose its own ministers. The protection exists, however, only for religious entities and only for the hiring of “ministers,” something the courts are still defining.

The First Amendment, which most people think of when it comes to religious freedom, actually provides little protection from such laws and agency decisions. In Employment Division v. Smith, decided in 1990, Justice Antonin Scalia held that religious protection did not exist if, like nondiscrimination laws, the law did not target religion and was applicable to everyone.

There is hope that Smith will be reversed soon with the help of Justice Amy Coney Barrett who, ironically, was Scalia’s clerk. Such a reversal would provide protection similar to RFRA. Until then, the extent that North Dakotans have religious and conscience protections from the reach of Bostock is unknown.