David Miller, Shareholder with Bryant Miller Olive in Fort Lauderdale.

The conservative-majority U.S. Supreme Court ruled on Monday that the U.S. Civil Rights Act's ban on sex discrimination includes discrimination based on sexual orientation and transgender status.

If that was a surprise, so was the author of the court's opinion—Justice Neil Gorsuch, President Donald Trump's first pick to add conservatives to the court.

And if that was a surprise, so, too, was the reasoning underlying the decision, Bostock v. Clayton County, Georgia.

Title VII of the act prohibits discrimination in employment "because of … race, color, religion, sex, or national origin … ." Sexual orientation? Not there. Transgender? Don't see it. This plain language or "textual" argument is the most obvious, most common sense, and most compelling reason not to extend Title VII's protection, according to those who argued against it.

Further, they argued, nobody in 1964, when the law was passed, had any conception that it protected gays, much less transgender individuals—an "original intent" argument.

Textualism and original intent have been the mantra of conservative jurists, especially nominees of Trump. Judges who stray from the intent of the lawmakers and the words they used to express it are in error, they say.

So, just what did Gorsuch say he and the majority were doing in finding that "sex" included "sexual orientation" and "transgender?" Why, applying original intent and sticking with the meaning of the text as written, of course. Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented in the 6-3 decision.

Gorsuch wrote, "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." He posed the example of two employees, one male and one female, both sexually attracted to men. If the first is fired and the second is not, the man has been fired, at least in part, because he is male.

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids," Gorsuch wrote.

Sex need not be the only reason for an employment decision, according to the opinion, but if it is a reason, the decision is illegal.

Kavanaugh, Trump's second pick for the high court, disputed that the majority is hewing to the textualist line. He wrote that the decision focuses on the "literal" meaning of a single word rather than the "ordinary" or commonly understood meaning of the phrases, sentences and entire passages of which the words are a part and without which they cannot be properly understood—nor intent properly discerned.

As to the kind of example that Gorsuch put forth, Kavanaugh retorted that such employees "were fired because they were gay, not because they were men." As such, he argued, they were fired because of sexual orientation, not because of sex. There's a difference. The law prohibits the latter and says nothing about the former. The majority's broad sweep ignores this distinction and reads into the law words that are not there, he said.

Gorsuch dismissed this last argument as a "canon of donut holes," that is, a proposed rule of interpretation that would limit the application of a law only to those specific cases listed. Title VII was written more broadly, he wrote, and applying it broadly is applying it according to its intent.

Finally, the majority refused to listen to the parade of horrible arguments—that this ruling would outlaw single-sex bathrooms or mandate that boys and girls share locker rooms at school. That is an invitation to legislate, Gorsuch wrote. And, besides, those "are questions for future cases, not these." The same goes for fears that employers' religious convictions may be compromised by having to comply with this interpretation, he stated.

The entire opinion, with the dissents, can be read as a dialogue—or spat—between different camps in the textualist/originalist camp of statutory interpretation. There is some, but not much, rhetoric about historical injustice or social policy or public mores (although Gorsuch weaved in a wry thread about how lawmakers who added sex to the law in 1964 may have hoped thereby to derail it—and were hoisted by their own petard). Interestingly, it was mostly Alito in his separate dissent who goes there.

When President Richard Nixon went to China in 1972, it was said by some that only a staunch anti-Communist like him could have the credibility to pull it off. Maybe that same sentiment applies today to Bostock: It took a conservative textualist/originalist to do it.

Attorney David C. Miller is board-certified in labor and employment law by the Florida Bar. He is a shareholder in the Miami office of Bryant Miller Olive and represents employers.