The Civil Rights Act protects trans and gay people now. Because the Supreme Court has so ruled.
I’ve long said some of the best philosophy written is in Supreme Court rulings. It’s always practical, real-world philosophy, that actually affects lives, so it’s also often more important than much that passes for philosophy in academia. I think you can learn more about free will by carefully reading Supreme Court rulings on it than in whole philosophy books about it. And Roe v. Wade was a masterpiece in philosophical literature; it should be included in an anthology of most important publications in philosophy of the 20th century. If you haven’t read it, you should. You may be surprised to find it does not say what you think it does; and that it also says so much more than people give credit.
Not all Supreme Court rulings are like this. Many are turds of ideological sophistry. But every once and a while…
“Sex” and the Civil Rights Act
The latest Supreme Court ruling on discrimination based on sexual orientation and trans status, Bostock v. Clayton County, is another example. And yet it was written by Gorsuch—a conservative. That’s right, you have conservative justices to thank for this. Well, two. Roberts concurred. Those are the only two reasonable, and legitimately principled, conservatives on the Supreme Court today. Of course the new standard Evil Trio dissented (Kavanaugh, Alito, and Thomas; the former is the new boy, but the latter two have hardly ever said a wise word in their entire tenure). But not for any principled reason. Gorsuch’s case hinges on a semantic argument that is totally spot on, but that I had never put together before. Seeing it spelled out, it’s brilliant. And undeniably correct.
To understand why, let me summarize Gorsuch’s argument in a more directly philosophical way.
The Civil Rights Act of 1964 had “sex” added to the list of forbidden bases of discrimination, ironically because a white supremacist in Congress insisted it do, because no way was he going to let black people have more rights than white women (that was pretty much his reasoning). So how does that include sexual orientation and gender? Because discrimination on the latter basis logically entails discrimination on the former basis.
Assume we are the ones who have to interpret that law. And assume in doing so we shall take it to mean by “sex” biological sex, specifically chromosome type. That’s actually problematic because of AIS and other conditions that break the link between phenotype and genotype (not all biological men and women have the corresponding chromosome type: see my discussion in Attack of the Lycanthropic Transsexuals!), and XX and XY are not the only chromosome types humans can have (see When a Person Is Neither XX nor XY); but that isn’t relevant to what follows. Let’s just assume the law even outright literally said, for whatever reason, “on the basis of chromosome type” and not “sex.”
And therefore, correspondingly, assume “man” and “woman” hereafter also means solely that—even though no one ever knows or is allowed by medical privacy laws to know anyone’s chromosome type, so no discrimination based on one’s actual chromosome type even exists; only discrimination on presented or apparent type exists, which is actually gender and not sex. Hence sex discrimination is in practice actually only gender discrimination. But pretend we don’t know that for a moment. (The distinction, as general knowledge, largely post-dates the 1960s, though now is well-established scientific fact.)
If you accept a woman for a job who is sexually interested in men, but not a man who is sexually interested in men, you are (surprise!) not discriminating based on sexual interest. You can’t be. Because the sexual interest is identical in both cases. Which means you are actually discriminating based on biological sex. The thing you are actually offended by and punishing is “being a man” in that situation. That’s the only thing that is “different” and thus the only thing you are targeting with your discrimination. And equal rights means equal rights. You can’t punish men just for being men; and you aren’t punishing “being interested in men.” Because you are cool when women do that, so clearly that’s not the thing bothering you; it’s men doing that that does, so you are treating men unequally. Q.E.D.
Thus that 1964 Civil Rights law already protects being gay despite never mentioning being gay, and does so even if you define sex as biological sex. Indeed, even if you define it even more narrowly than that, as chromosome type…even though there are more than two of those, so available chromosome type is non-binary; as is genital expression, and hormone expression. Even naturally, without interventions; but then we have interventions. Biology, alas, does not conform to bigoted ideologies; it’s way messier and more confusing. But even if we grant the bigot’s false assumption that biological sex is strictly binary and always matches chromosome type, the conclusion still follows: you can’t punish a man simply for doing what a woman does; that’s punishing him for being a man. If he wasn’t a man, you wouldn’t be singling him out.
This same logic extends to being trans. It’s not that the Supreme Court has now chosen to redefine the word “sex” in that law as meaning “gender.” After all, no such intent could be imagined at the time the law was passed. The distinction between sex and gender was not widely known then; so the fact that the discrimination they were talking about was actually based on gender rather than sex was also unknown to that law’s authors. Though here their intention would operate to the same conclusion: they clearly meant to outlaw discrimination based on appearances, because that’s actually the only discrimination they really knew about. But that’s not what Gorsuch argues. Rather, Gorsuch’s reasoning is exactly the same as for sexual orientation: when you discriminate against a trans person, you are not discriminating against presentation (say, “wearing a dress,” or “wearing makeup,” or “calling yourself a man”), because that’s the same in both cases.
Whether we are talking about a biological man presenting as a woman (almost in essence the definition of being a transwoman—not quite, but close enough for the present purpose); or a biological woman presenting as a woman (almost in essence the definition of being a ciswoman—again not quite, but close enough); either way, the presentation is the same: dress, makeup, gender label—whatever it is the discriminator is “offended by” and keying on to discriminate. So in fact when you discriminate against a trans person, you are in fact discriminating based on their biological sex—in fact even their chromosome type (or at least so you believe, and belief establishes intent). The thing that offends you is not how they look or present; the thing that offends you is their biological sex. That it is a man doing that (or a woman). That’s it. It’s not the behavior; it’s which sex is doing it. And that has been against the law since 1964.
“Your behavior would be acceptable and protected if you were an XY but not if you are an XX” is by definition discriminating based on chromosome type. Thus even a reading of the word “sex” in the Civil Rights Act as “chromosome type” inescapably entails a prohibition on discrimination based on sexual orientation and gender. Because come down to it, that’s all anyone is discriminating against in either case. Again, at least as they think; no one ever really knows anyone’s chromosome type, so the discrimination is clearly not really based on that, but is only believed to be by the discriminators; but that’s irrelevant to the above analysis. No matter which way you read the word “sex” in the Civil Rights Act (the way bigots want, the way its ignorant authors mistakenly intended, or the way liberals wished), the conclusion always remains the same: discriminating based on trans for gay status is discrimination by “sex.”
As conservative justice Neil Gorsuch, the very author of this opinion, put it: “It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision…if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Precisely right. “Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex.” And that’s against the law. And it’s against the law even when reading that law as referring solely to biology with the term “sex”—as in fact the Supreme Court just ruled that it did, based on the accepted meaning of the word known to the law’s authors when they wrote it.
As Gorsuch describes and quotes from a lower court ruling:
At bottom, these cases involve no more than the straight-forward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.”
Snap.
There is a lot else of interest in the full decision. As often is the case, for example, it ranges over a lot in the subject field of “philosophy of law,” not just the particular factual and interpretive issues central to the ruling. But I’ll focus on the latter. Because good philosophy is also found in great rebuttals. And this one has a lot of that.
“Bu’ Whaddabout…”
The opposition tried to argue that discriminating against trans and gay status doesn’t involve discrimination by sex, “But each of these arguments turns out only to repackage errors” already exposed by previous Courts. Likewise they tried the usual “There will be consequences!” and “That’s not what the authors intended!” Neither of which, Gorsuch points out, is legally valid. Indeed, the opposition posed numerous commonplace examples of “bullshit bigotry,” the kind of stupid arguments you run into all the time, which are designed to deny or evade reality, instead of admitting you’re a bigot and what you’re doing is illegal.
The first set of arguments included:
- Semantic game-playing (“but the complainants don’t say we discriminated based on their sex in everyday conversations”), which Gorsuch calls out with decisive examples of the irrelevancy of that argument—which includes the principle I often call attention to, that you cannot change what a thing is by changing what you call it; and that due to logical entailments, what people actually mean by what they say is far more expansive than what you might narrowly insist their words mean simply because it suits you.
- The “we didn’t mean to do it” argument, attempting to claim they “lacked intent” and thus can’t have broken the law (in short, “we didn’t know we were discriminating based on sex”). Which Gorsuch dispatches by calling their bluff (emphasis mine): “an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules,” because “an employer that announces it will not employ anyone who is homosexual, for example, intends” thereby “to penalize male employees for being attracted to men and female employees for being attracted to women.” It’s inescapably about sex; if it wasn’t for your awareness of (or belief regarding) their biological sex, you wouldn’t have done it. So claiming lack of intent is bullshit. Gorsuch thus exposes the hidden, true basis of bigotry here: it’s really all about bigoted ideologies regarding sex and always has been.
- “But what if we ask them to check a box ‘gay or trans’ and never know their actual sex?” the bigots ramblingly try to respond. “There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex,” Gorsuch replies. In other words, being sneaky about how you learn things about their biological sex does not allow you to discriminate on that basis. It’s still discriminating based on sex. Because sex is the only thing that differs when you check those boxes. Unlike, for instance, the boxes “do you like men” which tells you nothing about a person’s sex; or “do you identify as a woman,” likewise. Anything else conveys information about sex, enough to discriminate based on it.
- “But Congress didn’t say ‘gay’ or ‘trans’ so they can’t be included!” To which Gorsuch, the adult in the room, admonishes them: “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second,” so it doesn’t matter that they aren’t explicitly named—a logical entailment cannot be escaped (bigots, you might have noticed, always want to escape logical entailments). “Nor is there any such thing as a ‘canon of donut holes’,” Gorsuch reminds them, “in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception”; to the contrary, “when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.” That’s the law. Always has been and always has to be. So their objection is just dumb; it would make a bizarre hash of our entire legal code.
- “But Congress never fixed it and should have!” At which Gorsuch really bitch slaps them by quoting the King of Conservative Supreme Court Justices right back at them, Justice Antonin Scalia himself: “Arguments based on subsequent legislative history…should not be taken seriously, not even in a footnote.” Ouch. Granted, sometimes one should and does take legislative history into account, but not in the speculative way they argued, which requires psychic knowledge of the secret thoughts of legislators.
At this point the bigots tried the most convoluted argument ever:
Asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman—we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no … violation has occurred.
To which Gorsuch responds, “While the explanation is new, the mistakes are the same.” He analyzes over several paragraphs why this is a bullshit argument, but really knocks it in the end with an analogy that exposes why an argument for even more sex discrimination can’t be an argument for the absence of sex discrimination—and this maneuver just made me laugh, because it’s a classic internet-style pwn:
When a qualified woman applies for a mechanic position and is denied, the “simple test” [of the Court] immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. But like the employers before us today, this employer would say not so fast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The “simple test” thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. And because that job seeker would be refused too, this must not be sex discrimination.
Bam. In other words, wink-wink, “I caught what you were doing there. Nice try, Mr. Bigot.”
All their statutory arguments were absurd. All are well dispatched (well beyond my overly brief summaries; really, it’s worth reading the whole text). So, “Ultimately,” Gorsuch turns, “the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy.” Generally this new maneuver amounts to a “But that’s not what they intended!” style of argumentation. To which one need merely quote Gorsuch again:
This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.
If only the Supreme Court actually did that so consistently as he claims; but it is reassuring to hear Gorsuch affirm this principle—we’d be way the hell worse off if he didn’t. Laws must be interpreted as written, not through a lens of ideology that restricts its implications according to shifting fashions. If Congress wants to address shifting fashions, it can rewrite the law. Until it does so, the law is the law. It does not matter whether Congress foresaw everything that law would entail when faithfully enforced. “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” Gorsuch surveys a whole list of examples illustrating why this is the way it has to be, and is the way it has always been.
After all that, the Evil Trio’s dissents offer nothing against any of it but screeds and whinging; with appendices, a veritable word wall three times as long as the decision they are harrumphing; in which they have no new argument Gorsuch hadn’t already refuted. As is typical for bigots: ignore everything that was just said in refutation of you, and just keep repeating the same arguments that were just knocked down. Ignore reality. Defy logic. Rinse. Repeat.
Alito and Thomas even try citing the late Scalia against Gorsuch, in which they reveal a complete disregard of what actually just happened. “What” Gorsuch’s use of Scalia’s doctrine of textualism “actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘up-date’ old statutes so that they better reflect the current values of society.” At no point, anywhere, in Gorsuch’s 33-page ruling does he ever make such an argument. He never appeals to changing values as a basis for reinterpreting the law. His only reference to changing fashions is rather in the opposite direction: that the law cannot be reinterpreted to match changing fashions; Gorsuch himself says that would convert law into whim.
To the contrary, Gorsuch’s entire reasoning was completely value-free: it hinged solely on what the word “sex” actually meant to the lawmakers who put it in; and on the actual, objective facts of what discriminators are doing when they discriminate. Nothing more. In every case, but for one’s sex the same decision would not be made. Which is discrimination based on sex. Period. To which argument Thomas and Alito offer no actual rebuttal. They just repeat the same arguments already rebutted, often even ignoring all the counter-evidence Gorsuch adduced to their each and every point. Generally, their every argument pretends the Gorsuch ruling had “changed” the definition of sex (it did not) or that discrimination based on orientation or gender can “proceed” without targeting sex (it can’t). And that’s that.
Kavanaugh then adds his separate dissent, in which his principle argument is, without any apparent sense of irony, “Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result.” That’s basically Gorsuch’s entire rebuttal. Talk about an own goal. Kavanaugh has nothing really to offer either, except, again, just repeating arguments Gorsuch already refuted.
Contrary to Kavanaugh, Gorsuch used the “ordinary meaning” of “sex” and did establish that that ordinary meaning encompasses discrimination based on the specific behaviors in question (sexual interest, gender expression). In fact he showed it does so precisely because of the well-established but-for standard at law: but for sex, neither of those behaviors is being targeted. It is only because the behavior is engaged in by “the wrong sex” in the mind of the discriminator that they are discriminating at all; and that’s discriminating based on sex. You are allowing men to do things you won’t allow women; and vice versa.
Kavanaugh has no intelligible response to this point. Because, frankly, there isn’t one.
Thanks Richard! Very interesting!
Something seems wrong in your 9th paragraph. If the 9th paragraph works, so does this one:
If you accept a male gynophile for a job, but not a male androphile, you are not discriminating based on sex. You can’t be. Because the sex is identical in both cases. Which means you are actually discriminating based on sexual orientation. The thing you are actually offended by and punishing is “being attracted to men” in that situation. … You can’t punish androphiles just for being androphiles and you aren’t punishing “being a man” because you are cool when gyophiles are that, so clearly that’s not the thing bothering you; it’s androphiles being that that does, so you are treating androphiles unequally. Q.E.D.
Doesn’t that mean that refusing a job to a gay man is discrimination based on BOTH sex and sexual orientation?
If I understand your question (and I’m not sure I do) I don’t believe it does. Part of the case law that Gorsuch cites in defense of his opinion in this case is a 1971 Supreme Court case Phillips v. Martin Marietta Corp in which a company had a policy of not hiring women with young children while hiring men with young children.
Then, as now, the arguments that were made in support of the policy was that it was not a violation of Title VII because it was not discriminating on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children. This argument was not persuasive because then, as now, these women were not hired but men in the same position were not similarly disqualified, making it clear that two discriminations were going on. Women and with children.
But as a technical matter “with children” is not a protected class and you cannot sue if you are discharged or if a company fails to hire you for having children…unless it does so on a discriminatory basis so that only “women with children” are discriminated against. “That an employer discriminates intentionally against an individual only in part because of sex supplies no defense to Title VII,” Gorsuch wrote.
(As a side note, Federal Executive Order 13152 prohibits employment discrimination against federal employees because of their “status as a parent.” but this is an order only affecting federal employees rather than all employees and is beyond the scope of Title VII which is the issue under discussion).
As a further technical matter, if discrimination was found to actually impact an individual because of two protected classes…say an employer fired all black Catholics but not black Protestants or white Catholics,…there might be multiple illegal forms of discrimination, but I am not enough of a lawyer to know how that would affect a hypothetical lawsuit, judgements, or penalties.
It is also worth noting that Gorsuch rightly identifies how powerful Title VII’s specific language is in its implications, a portion of the argument that Dr. Carrier does not directly cite. Gorsuch writes, “Employers may not “fail or refuse to hire or…discharge any individual, or otherwise…discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.”
I can’t highlight it here, but every instance of the word ‘individual’ in the text quoted is italicized in the opinion, for deliberate emphasis. While noting that Congress could have passed the law to specifically and only protect groups as a whole, it did not. The protections granted by Title VII are individual protections, and that makes a huge difference. Gorsuch writes, “Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.”
This means that you can’t define your way out of a Title VII violation by trying to pretend to be blind to gender and only focus on sexual orientation or transgender status by firing all transgender persons or all homosexual persons. Because Title VII does not protect groups, it protects individuals from being discriminated against because they are members of certain groups, a much more powerful protection.
See the woman mechanic analogy Gorsuch uses to refute your point.
You are confusing punishing merely being a man with punishing a man who does things you let a woman do. The inequality is in how you treat the man. You are treating him differently than a woman. Same as in the “mechanic vs. secretary” example.
Your last statement is thus correct, and repeatedly affirmed by Gorsuch, just as with “you are discriminating based on BOTH her being a woman AND being a woman who wants to be a mechanic.” Read the decision to see the point. He explains with countless examples that all discrimination is multidimensional; the law only cares whether the “but for” test obtains; it doesn’t matter what else your reasons are (it does not matter why you are discriminating against men, only whether you are). This is true in all discrimination law. That’s Gorsuch’s point.
So here are the two statements that contradict:
From paragraph 9: “If you accept a woman for a job who is sexually interested in men, but not a man who is sexually interested in men, you are NOT discriminating based on sexual interest.”
From your previous post: “Your last statement is thus correct…” referring to “…refusing a job to a gay man is discrimination based on both sex AND sexual orientation.”
No. Those statements don’t contradict. That’s the point.
As I said, you are confusing “discriminating solely because of being a man,” or woman, which almost no discrimination is (no one ever says “you are a woman, and I have no other reason to reject you for this job, nor can even explain why your being a woman makes you unfit for it”) and what the law actually applies to: choosing a reason to discriminate (“you want to be a mechanic”; “you like men”; “you have kids”; etc.) that you apply unequally by sex (“you want to be a mechanic” + “you are a woman” = no job; “you want to be a mechanic” + “you are a man” = job).
So yes, you are discriminating based on both; but only in respect to sex. That is, if it weren’t for sex, you would not be discriminating—as one can easily show by creating a truly blind process: if you only hire equally, and are actually blind as to sex, you will get results contrary to the one you are choosing to create by discriminating (“you like men” will get you gay and straight people, the opposite of what the bigot creates by discriminating; just as “you want to be a mechanic” and “you have children” and every other reason people have for discriminating by sex).
In other words, you are confusing discriminating by sex as a fact, and why people discriminate by sex (their reasoning). When you count both, yes, you get statements like “you are discriminating against both”; but the only thing that ties all this into being an act of discrimination under the law is the only feature you are actually creating a disparity for: sex.
Yes, people will have lots of bigoted reasons why they are doing that; and they may dislike all kinds of other things in connection with this (not just “women,” for example, but “women who want to be machanics”). But the “but for” legal standard shows only one actual factor is affecting your decision: sex. “But for” her being a woman, you’d have hired her to be a mechanic. “But I hate woman as mechanics, I don’t hate women” might be true (“both” are then the case), but that’s irrelevant for the law, which is only asking what the “but for” factor was. And there is only one of those: being a woman.
Thus bigots can’t escape the law by claiming “but I really only hate women being mechanics, I’m fine with women otherwise” (or even “I even prefer women as employees!” — a real example Gorsuch gives from case law). Though it is true they both are discriminating against women and against women wanting to be mechanics (regardless of what they say), the only actual difference triggering application of the law is: you aren’t doing this to men.
I think you missed the difference between the terms “sexual interest” and “sexual orientation”.
Orientation (heterosexual, homosexual, men attracted to men, women attracted to women, women attracted to men, men attracted to women, etc.) specifies two points: the person being desired and the person who desires them.
Sexual interest (attracted to men, attracted to women, etc.) specifies only ONE point: the person being desired.
This key difference between the quotes results in no contradiction between them.
Pansky just hit on a key point here as well. I concur.
P.S. Also what Benjamin said. He gives another example among the many Gorsuch provided. There are several others in the ruling.
Likewise Benjamin’s second comment quotes another really sharp point Gorsuch added (that this is an individual protection not a “group right”). Ironically this is something bigots often try to claim is the other way around, as if we are giving rights to “groups.” No, we are giving rights to individuals, precisely to protect them from being treated as if they were members of a group—when such treatment is unfair, i.e. when the group membership does not in fact pertain to their qualifications.
In other words, it’s racists and sexists and homophobes etc. who are treating individuals as members of a group, forcing them to respond in defense of themselves as a group. Which the racists and sexists and homophobes then oppose with laments of “but shouldn’t we be treating everyone as individuals,” a disgusting tactic given that they are precisely the ones who won’t let individuals just be individuals. Bigots are the ones forcing people to be treated as members of a group. The Civil Rights Act then reacts to that by stopping it. It is thus extremely disingenuous of bigots to them claim it gives rights to groups and not individuals. Not only because of the historical fact that this is actually a defense against their doing that, but also because the law itself is explicitly written as defending the rights of individuals. Not groups.
OK. I think I get it now after several hours of wrestling with the logic. A lot of new legal ideas to absorb. Whew! Thanks!
Quick correction – I think in the para beginning “Whether we are talking” you meant to write trans woman not transman. (also ideally always two words because anti-trans folk, when they will even refer to trans people without writing the odious ‘trans-identified’ run the prefix with the noun to create a new noun, as though there’s a separate category rather than trans being a sub category. Forgive pedantry, but it’s important to avoid accidentally using a dog whistle.)
Oh yes! Thank you. That was a typo. I forgot I switched examples from the previous paragraph. Corrected.
Great article, very useful and helpful!
Further thoughts…even though in UK the equality Act 2010 specifically protects people from discrimination on the basis of sexual orientation and gender reassignment at any stage, there are people (eg JK Rowling) who have managed to influence the current Minister for Women and Equalities to persuade the PM to amend UK laws in order to:
From my understanding of your analysis of the SCOTUS judgement I think the same argument could be used to prevent any proposed ban on hormone treatment or similar ban on trans youth and chest surgery to 16+ trans boys.
It would only be possible to prevent a trans masc 16-year old from getting chest surgery by waiving Gillick competency, which the NHS uses to allow elective treatment from 16+. And this discrimination would be on the basis of SEX because otherwise they’d also have to prevent bio-boys with unwanted chest tissue (there are plenty) getting the same surgery. Similarly, insisting that there is a ‘correct’ body for an AFAB person, therefore no irreversible surgery for trans masc 16+17s is SEX discrimination. It’d also mean no cosmetic surgery for 16+17 girls.
A can of worms. And Gorsuch has brilliantly shown why with his clear philosophical argument!
That’s a good point too. Though had that been the case before this court, the side issue of “medical risk” would have come into play and been a major point covered (as with the abortion dispute addressed by Roe v. Wade); possibly also relative harms (e.g. the damage done by not intervening, which would have to take into account transphobia and the “medical” risks of not “passing” in a demonstrably violent transphobic society). This ruling didn’t have to address any of that. And I don’t know Gorsuch would have been as honest and objective in such a case. I would like to see that properly done sometime though.
Does Titl 7 speak of sexual orientation? Where?
Does Gorsuch say it does? Hardly a plain reading.
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Hopefully, if President Trump gets re-elected,
and an appointment of pro-life justice insues Roe v Wade can be abrogated or expunged so that millions of children won’t be killed in the womb…
So…you didn’t read my article or the court decision. Got it.
Your fanatical commitment to deliberate ignorance is awe inspiring.
I daresay what inspires (faux) awe is the lies we tell ourselves to make us feel better.
I’ve just read the court decision and LO!
Justice Alito (- an ‘evil’ member of the Trinity – and presumably – now ‘fanatically committed to ignorance’ – [ie the ‘Law’ as scribed]) – writes:
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included“gender identity” as well.2
But to date, none has passed both Houses. Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to in-clude both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee. […]
Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity….[…]The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes.
Exactly correct & truth.
This rather lets the cat* out of the bag – and exposes the tyrannical kritocratic forensic casuistry.
*A type of leather whip – but Gorsuch might wish to include felidæ here.
Wellaway.
Nope. Not a single bit of that is correct. Alito ignores the fact that interpreting the law as written is not legislating, it is in fact exactly what the Supreme Court was created to do, as Gorsuch already demonstrated by addressing this point with repeated examples of the fact, including examples even Alito himself supports. Note Alito never mentions or addresses any of the evidence Gorsuch adduced or any of the examples disproving what Alito is here saying or any of the arguments Gorsuch actually made against what Alito is now falsely (or, in some points, irrelevantly) claiming. This is why Alito is the disingenuous liar in this exchange. And you are a fool not to notice.
United States Constitution, Article III, Section 2: “the Supreme Court shall have appellate jurisdiction, both as to law and fact” — the Court is thus vested by the Constitution with the power, right, and obligation to interpret the law. And this was decisively established in Marbury v. Madison, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” This is fundamental to the Constitutional obligation and function of the Supreme Court and always has been.
Alito is lying to you.
Good to see this. It should happen more often that it is recognised that “we already have law that covers that argument/problem/situation.” I can understand where Kavanaugh is coming from; but he appears to be a beat behind the music.
I don’t know anything about how Supreme Court cases are argued, so I’m wondering – when you attribute arguments to Gorsuch, to what extent is he simply accepting and reiterating arguments made by the lawyers, versus contributing his own argumentation?
And to what extent do you think the distinction is relevant?
First, note it’s not just him. Apart from the Evil Trio, all the other justices concurred, and none wrote a concurring opinion of their own. Which means they all contributed to his arguments or signed off on them. This isn’t just Gorsuch. He’s just the author.
Second, argumentatively, the Supreme Court can do whatever it wants. Any reasoning it comes up with on its own is constitutionally valid. So no, the distinction doesn’t matter. (At least not as a matter of law; as I noted, SCOTUS has on occasion come up with some serious turds of ideological sophistry throughout its history. Congress can sometimes reverse a shit decision by writing new law. But that’s it.)
Third, the arguments for both sides of the issue were stacked up by three processes, all of which SCOTUS uses and is expected to address in the formulation of its ruling: litigant and amicus briefs (the latter, being literally anyone, anywhere, who submits a brief filled with arguments, for either side of the issue, and a great many were filed in this case; the former, being filed by the lawyers for the Plaintiffs and Defendants, of which there were several: this was a ruling on eight different cases that went through eight different appeals courts across the country); preceding court records (all the arguments made by both sides of all eight cases through several stages of litigation and appeals); and oral arguments (after all that, each side gets to “argue its case” before SCOTUS in person, for a limited amount of time, under interrogation by SCOTUS itself, essentially a “make your best points now” plus a Q&A directed by the justices themselves however they want).
Needless to say, there won’t be any argument not made by either side that SCOTUS won’t have to answer one way or another in its decision. Pretty much the whole world gets their say by this point, and every conceivable argument will have been exhausted. The one exception are arguments the litigants specifically chose to avoid (to which then even amicus briefs won’t be relevant); as in this case, the Defendants all chose not to argue they didn’t discriminate against gay and trans people, but instead to argue they should be allowed to. As that concedes an argument to the Plaintiffs, the Plaintiffs also had no reason to address it either. And yet Gorsuch is so thorough, he spends a line or two acknowledging even this point.
Finally, it is typical for SCOTUS decisions to reflect arguments already made by either side of an issue ruled on. In this case, the central point in Gorsuch’s ruling came from an amicus brief (I can’t recall by whom). He didn’t come up with it on his own. He just realized it was correct, and wrote an extensive argument explaining why they are right. Much of which might come from the amicus brief or other materials enumerated above (judges love it when you do all the research for them and all they have to do is fact-check its context and relevance).
Dr. Carrier what if the employer asks the applicant if they are only attracted to members of the opposite sex? Does that get them around the problem since they are equally excluding homosexual men and lesbians alike and to the same degree?
“Opposite sex.” Sex. You just told them something about your sex.
Gorsuch has a whole section on this (including your very example), which I summarized in my article above.
You can only not be discriminating based on sex when you know nothing about their sex. There is no way to tell someone you are attracted to “the opposite” sex without telling your employer something about your sex, which they can use to discriminate—by your being now “the wrong sex,” i.e. if you don’t want women doing what men do and don’t want men doing what women do (pretty much the definition of all sex discrimination), you are discriminating based on sex; and you don’t need to know specifically whether the target is a man or a woman, only that they are doing what you deem inappropriate for their sex, but don’t deem inappropriate for the other sex. This is still sex discrimination. That you are being “sneaky” about how you learn information about their sex (that they are doing “the wrong thing” for their sex) is not a defense.
Imagine for example you had a question “Do you want a position at our company traditionally inappropriate for your sex?” and you used this to not hire women as mechanics and not hire men as secretaries. That’s textbook sex discrimination. That you used a trick question to sneak information about their sex so you could sort men into mechanics jobs and women into secretary jobs is not a defense. It’s just a trick you are pulling to keep doing the same thing: not letting women be mechanics or men be secretaries.
I bet Gorsuch was thinking “You idiots should have made this a religious liberty issue, then I would totally rule in your favor.” – but of course, only if we’re talking about Christian religious liberty.
Religious liberty has a section in the ruling. In which Gorsuch points out it is legal as a matter of law to discriminate on a basis of sex for a religious institution. And that’s true. The Civil Rights Act specifically carved out an exception for that. Which in fact is evidence for Gorsuch’s conclusion: the authors of that law knew to carve out an exception for religious organizations; therefore they could have carved out exceptions for other institutions but didn’t. Consequently, it cannot be argued they intended exceptions for other institutions (like secular businesses).
He also mentions religious liberty defenses for employers who aren’t running religious orgs, but none of the defendants in the cases under review here were maintaining such arguments, so (he notes) he doesn’t have to address them. Notably, they tried, but dropped those arguments when they were overruled by lower courts; I suspect it would not have made a difference to Gorsuch’s ruling, since he would simply point out that it is long settled case law that you can’t use religious excuses to bypass the entire Civil Rights Act—if you are running a secular business, you have to play by secular rules, or get out of business—that’s in fact the entire point and purpose of the Civil Rights Act: you don’t get to be a business of public accommodation anymore, and not play by fair market rules; only churches get to do that.
P.S. Be aware, Gorsuch was not on the Court for the infamous Hobby Lobby decision. But even that ruling did not carve out an exception for religion. It used a sophistical device to avoid ever doing that, while effectively doing that. (Using a “least restrictive means” argument, rather than a first amendment argument, which wouldn’t apply in the Gorsuch cases.)
Ironically (darkly ironically), the Hobby Lobby decision advocated exactly the opposite reasoning Alito poses in his dissent to the Gorsuch ruling, extensively arguing the Court can by decision create new law, even mandate the creation of entirely new government offices (!). Guess who wrote the Hobby Lobby decision.
Dr. Carrier if the Supreme Court were to focus on the intent of the law (as written back in 1964) do you think they would have to conclude that it was specifically about one being discriminated against based on their gender? Does anyone honestly think that the law as written back in 1964 was intended to protect anyone from discrimination based on sexual orientation?
To be clear I’m not trying to advocate such a position I’m strictly asking from a legal “original intent of the law” standpoint.
No. None of that matters for interpreting the law. There are thousands of examples of the Court agreeing unintended consequences of a law are valid; that’s so settled a standard of Supreme Court decisions now, it practically defines almost every case before it.
And that despite fringe holdouts (always arch-conservatives—like Thomas) who advocate for the interpretive philosophy you are referring to here (called originalism). Gorsuch discusses this extensively, so if you want to understand that point, read the decision. Gorsuch is a textualist, not an originalist. And most SCOTUS decisions in the last half century have been textualist.
A famous example of textualism overriding originalism (used in the above link) is how a right to privacy was deemed to apply to married couples’ use of contraception: in no way did the framers think of that when they wrote that we have a right to privacy, but what they did think of (their idea of privacy and what it was) entails allowing married couples to use contraception without government interference. Almost all SCOTUS decisions rely on exactly this kind of thinking—including, ironically, many decisions authored by justices like Alito who harrumph at it only when it doesn’t support their ideological goals. Indeed, IMO, originalism seems to be a largely fake philosophy: no justice actually believes in it; they only use it as an excuse to get results they want—and abandon it as soon as using it won’t go their way.
Philosophically, it is obvious textualism is correct. A consistent enforcement of originalism would entail bizarre readings of the law, whereby unless a specific situation was thought of (and you can prove it was thought of; almost impossible as we are not psychics, much less time travelers), the law wouldn’t apply to it. This basically makes a million undetectable and unpredictable loopholes in every law, and renders laws almost impossible to enforce (because it is literally impossible for legislators to have thought of every conceivable application of a law, or indeed even more than a small fraction of hypotheticals). Worse (as Gorsuch points out) it would mean you (a citizen) can never know what the law means, because its “meaning” is anchored to time traveling psychic readings of (often long dead) legislators’ minds and what “was” or “wasn’t” in them at the time. Textualism allows you to interpret the law as simply what the law says. No time travel or psychic powers required.
And this preserves original intent without turning into a philosophy entirely destructive to any reasonable application or understanding of the laws. For instance, the textualist reading of the right to privacy was based on the original intent of the authors: with respect to what the word privacy meant. In no way is it required that the authors have thought of every conceivable possible thing that could be covered by that word; what they understood the word to mean, is what the law says. Whatever unexpected consequences result, if they don’t like them, they can re-legislate it, to cover or “fix” what was unintended. That’s how the system is supposed to work, and has always worked (even before the United States formed; this has been a feature of English common law for centuries).
Thus, again, here: Gorsuch is respecting the original intent—of the language of the law. So, he bases his ruling entirely on what the authors of the Civil Rights Act meant by “sex” and by “discrimination.” But he rejects going beyond that, for the reasons I just enumerated (and more, which he spells out). The law is what the law says. Yes, what it says must be based on what it’s authors thought it said, but it cannot be based on what they thought the consequences of saying that might or might not be, because the latter is not written down, much less in the law, and thus is a land of wishy washy ignorance and uncertainty, that necessarily must exclude millions of unanticipated circumstances. And legislators have always known this, BTW. They know SCOTUS often, if not in fact always, rules on a textualist basis. Thus they are writing law with that understanding. Which reciprocally allows SCOTUS to read the law with that understanding.
I wonder if you could comment on the related issues of bathroom-usage, forms of address, dress codes, and participation on sports teams–all of which, I acknowledge, the majority opinion said it was not addressing (pg. 31). When I listened to the oral argument, I was persuaded by the main point of the lawyer, Pamela Karlan, arguing the gay rights side: “When an employer fires a male employee for dating men, but does not fire a female employee for dating men, he violates Title VII.” That is also the main point of your article.
But I was not persuaded by her comments on these other questions. Her legal distinction–between harmful and non-harmful discrimination–did not seem to be based on any workable standard, particularly when applied to what she called “idiosyncratic” preferences, a term under which appeared to include dress code requirements and addressing someone as “Mr.” or Ms.” These kinds of things, she said, do not cause harm and are not even discriminatory under the law. Why that is, she did not adequately explained, and I’m concerned that hers is not the position that LGBTQ advocates actually are advancing. Maybe what she said was sufficient for this legal case–whose outcome I approve–but there is still social controversy and disagreement on these other questions, where I may be less inclined to go along. (I believe, for instance, that biological sex should determine the sports team that one is allowed to play on and the bathroom that one uses). I’m curious to know what your views are.
The argument audio and transcript can be found here: https://www.supremecourt.gov/oral_arguments/audio/2019/17-1618. The line of questioning I’m referring to starts at ~8’05. I’ve copied some of the text of the transcript here, for convenience.
———
JUSTICE SOTOMAYOR: Do you think we need exemptions for those BFOQs? It’s not just the — physical fitness standards for different sports, but big issue right now raging the country is bathroom usage. Same-sex bathroom usage.
How are those cases going to be dealt with absent a congressional exemption other than BFOQ?
MS. KARLAN: Well, I think the way that they get dealt with is everybody agrees if you have men’s bathrooms and women’s bathrooms, that’s because of sex. It treats men one way, it says go to this bathroom. It treats women another way, it says go to this bathroom.
Then the question becomes is that permissible to do? And if I could just begin with an example that I think will show why this is so. When I got up, the Chief Justice said to me, “Ms.” Karlan, I am willing to bet any amount of money I have that when Mr. Harris gets up, he is going to say “Mr.” Harris.
He has treated us differently because of sex. But that’s not discriminatory because neither of us has been subjected to a disadvantage. And as this Court said in Burlington White against North — Burlington Northern against White, what the statute means when it says “discriminate against” is to cause an injury and requiring people generally to use separate bathrooms is not an injury.
JUSTICE GORSUCH: Well, I’m — I’m not sure that maybe how they would see it. And to what — to what extent should we take that into account? And same thing with a gender-specific uniform requirements.
MS. KARLAN: Sure.
JUSTICE GORSUCH: How would you deal with those, given that — that at least those affected might think that they’re suffering a harm?
MS. KARLAN: So there’s no categorical rule about these. For example, the fact that all of the men sitting at counsel table knew that they had to wear ties today and I was free not to didn’t cause an injury. On the other hand, even the dissenters in the Second Circuit said, if the Court said women who come to argue should argue in Hooters outfits and the men should wear –
JUSTICE GORSUCH: No –
MS. KARLAN: — ties –
JUSTICE GORSUCH: — we’re not -we’re not — I mean –
MS. KARLAN: I know.
JUSTICE GORSUCH: — we can talk absurd examples –
MS. KARLAN: No, but I can –
JUSTICE GORSUCH: — or we can talk real world examples.
MS. KARLAN: I will give you a real world example, which is, it probably doesn’t violate dress code to require men and women in business events for the women to wear skirts, but if you required a telephone lineman to wear a skirt –
JUSTICE GORSUCH: No, no –
MS. KARLAN: — while she’s still –
JUSTICE GORSUCH: I understand that. That’s not what I’m getting at. And you know what I’m getting at. The funeral homes example’s not a bad — the case that we’re about to take up is — is — is more in the — in the realm of my question.
MS. KARLAN: Okay.
JUSTICE GORSUCH: You can offer me help if you want to.
MS. KARLAN: Yes, yes. No, I’m trying to offer you help. What I’m trying to say –
JUSTICE GORSUCH: All right. What I’m — what I’m suggesting, counsel, is that there are male and female bathrooms, there are dress codes that are otherwise innocuous, right, most — most people would find them innocuous. But the affected communities will not. And they will find harm. And how does your test deal with that one way or the other? That’s what I’m asking you to address, if you’d like to.
MS. KARLAN: Yes. My test says that you have treated the people differently because of sex, which is what we are asking you to hold here. When you treat a gay man who wants to date a woman differently than a man — woman who wants to date a woman, that — that’s discrimination.
Then you get to what I’ve said, which is you have to ask whether a reasonable person under these circumstances would be injured by the imposition of the particular sex-specific world. So when the Chief Justice calls me Ms., I am not injured. When I go to a — when I –
JUSTICE GORSUCH: You are not, but another –
MS. KARLAN: It — it –
JUSTICE GORSUCH: — person might be.
MS. KARLAN: Right. And the question –
JUSTICE GORSUCH: Are they reasonable or not? And — and I’m — I’m — I’m just -I’m wondering, how do you decide those cases?
MS. KARLAN: An idiosyncratic preference does not void an otherwise valid dress code or bathroom rule.
…
JUSTICE GORSUCH: Is it idiosyncratic for a transgender person to prefer a bathroom that’s different than the — the one of their biological sex? Is it idiosyncratic for a transsexual person to wish to dress in a different style of dress than his or her biological –
MS. KARLAN: No.
JUSTICE GORSUCH: Sex? Okay. So the answer to your question is — the question then, at the end of the day, if I understand it, is that those are acts of discrimination under Title VII as you understand it?
MS. KARLAN: Yes, although I think you’d — you’d be better advised to ask the question to someone who — who is representing someone who is transgender. I am representing someone who is gay.
Karlan said a bunch of things I don’t think are sound or clear reasoning. As did various others in briefs; and I don’t judge questioning by justices because it’s not necessarily indicative of their thinking, but of what they want to know. That’s why my article is about what SCOTUS ruled, not what various people tried arguing or what questions got asked in a hearing (much less in garbled, repeatedly interrupted arguments like this one, where nothing coherent can even be discerned).
Note this ruling is solely about Title VII, which is solely about equal employment opportunity, and is thus based entirely on whether you can do the job or not, which therefore only applies to jobs for which sex is irrelevant. And the cases being ruled on only pertained to employment opportunity, not accommodation. So neither sports nor bathrooms were relevant.
-:-
So, what follows has nothing to do with my article. But since you asked…
(1) Note even Title IX (passed in 1972) does not prohibit sex-based discrimination in sports, but only in public education; and “separate but equal” is established as a legal accommodation of that law.
Historically, “separate but equal” was rejected for racial segregation only because of the fact that the “equal” part was actually false, and not only in practical fact (as usually it also was), but also in part because of the adverse stigma created by compelling racial separation. Which means “separate but equal” is legal—as long as the “equal” part is factually the case. Which it is for gender, but not for race, owing to how we socially treat the two categories.
And that’s a relevant point here…
Title VII specifically says segregating in a way that “adversely affect[s one’s] status as an employee” is illegal, which is why gender segregated bathrooms remain legal—as a happenstance of cultural reality, it creates no social stigma for publicly-identifying-women and publicly-identifying-men to use womens’ and men’s bathrooms.
Which actually means Title VII is on the side of trans advocates who say singling them out (even so much as asking what “sex” they are) by compelling bathroom use contrary to their expression violates Title VII. As the law is written, forcing them to adhere to a segregation policy that “adversely affect[s their] status as an employee” is illegal, and as a matter of material fact, “sex based” (rather than gender based) bathroom policies do “adversely affect [their] status as an employee” and thus are illegal…or at least, so any honest textualist would have to agree. And I suspect serious textualists like Gorsuch know this and this is why SCOTUS has been avoiding bathroom bill cases like the plague.
Such it is for the law (or at least, what it will be if ever it gets ruled on by an honest court); but that’s a separate question from “what’s a good idea” or “what’s best” or “what laws we should have.” Insofar as the Civil Rights Act applies to bathrooms, trans advocates are legally correct, but SCOTUS has avoided ruling on it. If you want to know what I think we should do socially with respect to bathrooms, that’s no longer a discussion of the law, and is an even larger digression from the present topic. But I’ll say something about it anyway later on. Just remember, it’s completely unrelated from the question of “What would Gorsuch have to rule as to present law on this point if he remains consistent.”
This is sort of what Karlan was clumsily getting at, but as she was on-the-spot and kept getting interrupted, she couldn’t recall or quote the court precedents regarding the “adversely affect status” clause (e.g. in racial segregation rulings that overthrew “separate but equal”) so as to articulate the point I just made as would pertain to her client (who, as she noted, isn’t the trans plaintiff). And this never comes up in Gorsuch’s ruling because it was never germane to what he is ruling on (which is employment decisions, not bathroom rights).
(2) Title VII contains two specific carve-outs for acceptable discrimination. One for religious organizations, which Gorsuch says his ruling does not change the status of: they still get to discriminate all they want. The other is as also laid out in Section 2000 (or 703) subsection (e): “Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin” are exempt from the law.
This would mean, for example, strip clubs, acting roles, dance roles, etc. In such professions sexual distinctions between applicants is actually part of the purpose of the job and thus is not “irrelevant to qualifying” for the job and thus is not prohibited by Title VII. Sports fall under this same carve-out.
Insofar as what you are doing is hiring for a men’s football team, being a man is a requirement of the job (unlike, say, being a mechanic or a secretary), just as would be in hiring for an all-male-revue strip club. And the employer can define that any way they want; so long as they are explicit about it in hiring. Just as I can put an ad out for a job in which I list as a qualification “must have a penis at least seven inches long.” If that’s what I’m explicitly hiring for, and I have a legitimate reason to be (say, I’m hiring a model or shooting a porno), then having a seven-inch penis is a relevant qualification. It’s thus not discrimination under Title VII. Ditto any requirement a sports business wants to declare. So long as they can show it is relevant and not something they just made up.
Note that Title IX, passed in 1972, only pertains to public education, which must accommodate both sexes equally in sports, but may do so with a “separate but equal” accommodation (again, as I just noted, the “separate but equal” policy for racial segregation was not overthrown because it was illegal, but because it was false: the accommodations being made weren’t in fact equal; and discrimination cases today under Title IX don’t move forward by arguing against “separate but equal” but by challenging the “equal,” which is a purely factual dispute). Title IX does not apply to private clubs (or indeed, even schools that receive no federal moneys) or commercial sports businesses (which is most of what people mean by “sports” today: a commercial for-profit enterprise, just like a strip club or a dance revue; even college sports has mostly become that in practice).
This means, under the law, the same law Gorsuch’s ruling is on, sports teams can discriminate by sex in any way they want. As long as they can make an honest case that it’s relevant to the product they are selling (and because it’s a performance art, they almost always can). And so I am certain Gorsuch himself would have said, had that been the issue he was adjudicating. The parallel case working its way up the lower courts between men’s and women’s soccer (or football in foreign parlance) thus turned not on whether men’s and women’s teams were legally required to desegregate, but whether they were legally required to treat men and woman employees the same (which then hinged on a massive complex of debated facts regarding what “same” means; and can only and should only be decided on that basis).
So, as a matter of law, the answer to “what do we do about trans athletes” the answer is: pretty much whatever the hell owners and leagues want to do. Title VII simply doesn’t apply.
So, again, that’s a separate question from what I think owners and leagues “should” do or what would be “best” to do, neither of which is a matter of law.
(BTW, yes, this means leagues could have a “white’s only” sport if they wanted, if they made publicly explicit that that’s specifically what they were selling somehow; I think that would be legal even under Title VII, it just would be so damnably unpopular no sane business would bother offering such a product. So it tends not to be an issue.)
-:-
(3) As to the separate question of “what we should do,” rather than what the law says we have to do, my view is always the same as for every socio-political question under the sun and above it: the correct policy must be based on actual evidence; facts, not assertions or feelings based on fantasies and fears rather than realities.
On bathrooms, personally I don’t think we should have gendered rooms at all. Objectively that has always been super silly. Everything should be unisex. And we should design bathrooms intelligently around that concept (there is plenty of science to go on for doing this). And we should have cultivated a culture that is comfortable with that long ago. But until that happens, the matter still should be addressed based on actual evidence, not “concerns.”
And the actual evidence abundantly shows allowing people to choose the bathroom they prefer works out fine. Wherever you are comfortable, go there. And just be polite to everybody there, same as anywhere. None of the “concerns” actually come to fruition—at least, any more than for desegregating bathrooms by race, that is (“bigots were made uncomfortable” is not a relevant outcome measure). Meanwhile, we’ve always had desegregated bathrooms by sexual orientation—dudes get to check dudes out in the men’s room, and the ladies get to ogle ladies in the ladies’ room, and it’s been that way for hundreds of years and the world hasn’t descended into chaos…or indeed, even noticed.
Fact of the matter is, no one has to take a DNA test to get into a restroom, nor show their genitals or have them inspected to access a bathroom, so segregating them by sex isn’t even logical. No one actually knows anyone’s sex in a bathroom, certainly not genetically, but nor even anatomically (which is not the same thing), except at a urinal, and the people who use urinals by definition don’t care who checks them out there—else we wouldn’t even have urinals as a technology.
So my advice to people who are freaking out over where the penises and vaginas are is, “Get over it. You don’t know. You don’t need to know. You pretty much never will know. It makes no difference whatever to your life. Please go find a real problem to fret about.”
-:-
(4) With regard to sports, I’m astonished we aren’t just categorizing players by their pertinent competitive capabilities and attributes the way we do in men’s boxing (e.g. you don’t have featherweights fight heavyweights), and not giving a shit whether they have a penis or vagina. But since the public cares so much about watching only people with vaginas kick a ball, or only people with penises tackle each other, I guess you can go on selling that silly product if you want to. Indeed, it’s even sillier than that: the penises and vaginas have to be “natural born” or something, an even weirder nitpick. But hey, I never really understood people obsessed with these things. If that’s what you want to buy, they might as well sell it to you.
So when it comes to trans athletes, you just need to ask, as a customer, why do you only want to watch people with penises do things? Or why do the penises have to be natural? Or why does a chromosome, a microscopic molecule, matter? And so on.
For example, let’s say you care about only watching people with the same hormone levels compete with each other. Pick any random mixture state and range to obsess over; maybe history matters (e.g. “how long” and “since when” they’ve maintained those levels). Doesn’t matter. Just pick what it is. Then make that the requirement. Sex doesn’t even have to be involved. Sex can give you an edge (a natural chemistry is less work to maintain than an artificial one), but as long as everyone is, within your desired parameters, the same along the dimension you care about, why can’t they compete?
Or if it’s bone density, then make it that. Or if it’s blood cell count, then make it that. Or any combination. Just decide what it is you want, and sell and buy that product. There is no rational reason to make “sex” even relevant.
In a rational world, that’s what we’d be doing by now. But alas, we live in a nonrational world. But I’m not going to complain about that other than to keep pointing out how silly it is.
Struggling to be charitable and to find some threaded needle here as to why we should care about “sex” and not attributes, something that makes any rational sense, the best I can come up with is that because we have a sexist society that treats men and women differently, it can matter emotionally to an audience to see how women do in competitions with each other rather than having to compete with men.
It’s not even a matter of “men have advantages in some sports,” because we already have stages of capability among men in sport, and thus could have already organized our sports this way. Minor leaguers are often inferior to major leaguers; and if we stopped calling them that and instead just labeled them “low mass and high mass” leagues, or something more accurately descriptive, and allowed anyone to audition and compete, we might see a larger balance of women in the low mass leagues than in the high mass leagues. Much like in bowling and golf, where some leagues allow handicaps to allow lower performing players to compete with higher performing players, we could have leagues that set test requirements for entry that ensure similar levels of ability, and then tier the leagues accordingly (just as we do in boxing), and thus give women plenty of teams to play on.
So even this idea as to why we need to do it differently is a stretch. Yes, I guess, it makes sense to have gender-segregated sports because we have a sexist society that needs to see them for cathartic reasons; and because the way we’ve illogically organized our leagues so that they all have ability parameters too high for women to meet has the silly consequence that any other mechanism than sex-segregation would deprive women of sport altogether. But really, we could be doing better than this as a society.
As to the practical matter of how one would integrate trans athletes into our existing silly system, I would suggest you base your judgment on actual proven statistical facts, and not mere theories and anecdotes.
A lot of it has to do with simply what you want as a customer, and confronting why you want that and not other things. And then trying your hardest to disprove your answer before assuming it’s sound (that’s practically the scientific method in a nutshell).
But also a lot of it is simply getting the facts right, based on real evidence, and not rumors or suppositions or “battle by anecdote.”
I suggest looking at the actual facts, think objectively rather than traditionally, and listen to actual trans advocates. Look at real science, or support additional science on the question before deciding.
And ultimately don’t talk about sex. Talk about what you really are (supposedly) interested in, like “I only want to watch people with a certain body chemistry and a maximal muscle mass run a marathon,” or whatever it is. That this will make you look silly, might lead you to realize, it kind of is. But that’s the only way society can make progress in how it thinks about the world.
Dr. Carrier wrote:
It seems to me that in some cases the textualist position could work in favor of conservatives as well.
Take for example the right to bear arms. Obviously our founders could not have foreseen the invention of automatic assault weapons that go beyond what an individual might need to protect oneself and his/her family. But no matter since the Supreme Court is not concerning itself with “originalism”. Correct?
But I wonder then based on that why it should be illegal for me to possess weapons of mass destruction. Why can’t I make the constitutional argument that it falls under “arms” which it does and is therefore protected under the constitution?
And if the government has the right to dial it back for WMD then why can’t they dial it back for individual ownership of automatic assault weapons?
Oh yes. Gorsuch is, after all, a conservative. And a textualist. The best conservative justices typically have been. And even some of the worst ones (e.g. Scalia). Conversely, however, liberal justices are never originalists.
Even this conservative opinion piece that tries to argue liberals should be originalists plays on an equivocation fallacy: conflating textualist attention to original intent in determining the meaning of words, with the whole originalist philosophy that attaches entire unique ranges of meaning to sentences not ever possessed by the words in them.
But you’re wrong about the second amendment. A strict textualist would never claim that the words of the text, “a well-regulated militia,” are meaningless, or that the textual fact that it says “people” and not individual persons can simply be ignored as irrelevant.
Moreover, when the second amendment was passed, cannon and warships existed. So it is not as if they couldn’t have imagined weapons of war being covered by it; to the contrary, it never occurred to them that they were authorizing individuals to own artillery and warships. At the time they wrote that, their idea of people’s militia was a trained force under democratic control, with civil armories, not individual persons arming up independently of any oversight or responsibility. The Supreme Court speciously started changing the text to mean what the founders never imagined. That’s a violation of both originalism and textualism. But as I said, many a SCOTUS ruling is ideological sophistry rather than a principled demonstration of sound philosophy or analysis.
Your questions, BTW, are among many reasons the ideological sophistry that gave us a completely different meaning for the second amendment than ever intended and than even the words in it entail lands us in a bizarro land of illogicality. There simply is no coherent way to read the second amendment anymore. SCOTUS made sure of that. It’s now just whatever their ideological whims are, are what the amendment means now. To hell with textualism or originalism.
I am far more cynical with Scotus opinions than most of you folks. I think Justices engage in “result-oriented” thinking meaning they decide the result they want then “back-fill” the logic to get there.
Oh no doubt. As I said in the article, ideological sophistry is usually what we get. “But sometimes…”
Dr. Carrier wrote:
That being the case (if that was in fact the case) I was trying to envision what they had in mind with respect to a “people’s militia under democratic control”.
If we are not talking individual persons and not talking about a military branch then the only example that I can think of off the top of my head would be David Koresh (American Cult leader – Waco seige of 1993).
Am I far off? Is there a better example?
What they had in mind is what we now do with police departments, e.g. tactical units like SWAT teams and city police and county sheriffs etc. A citizen militia operated like sheriffs and deputies today: they were armed only when responsible to an elected official, and their behavior and options were responsible to the electorate; they had to be trained; they had to qualify; etc.
The Second Amendment was not about individual rights. It was about forbidding the federal government from disarming citizen militias. But those militias were still (and were thus expected to be) organized and controlled democratically by their respective communities (the same way police departments and sheriffs departments are). The Founders had no conception of it being otherwise; they’d be surprised and appalled by what we’ve done with their phrase “well regulated militia.”
So, for example, if we applied the Second Amendment today as written and intended, it would mean the federal government can’t come in and disarm the LAPD. Or the National Guard (which though federally operated is actually under states’ control and the amendment gives states the right to maintain their respective Guards; the federal government can’t come in and disband them or take them away). It would not mean local communities could not disarm individuals or unregulated subgroups (unregulated militias).
For a more accurate history of what the actual environment was the Second Amendment was written in and for, read Misinformed by Thomas Verenna. This includes examples of Founding Fathers disarming unauthorized militias like the Koresh compound. They well knew what the Second Amendment did and did not protect. SCOTUS has forgotten (or rather, is disinterested in knowing).
So I’m a little confused at how it could be “discovered” that sex and gender are different. Like, I have no problem with scientists deciding to make a definitional distinction if they see fit, but how is this scientifically discovered.
I’m not sure what you mean. But in 1964 few people knew that gender could misalign with sex. Most (certainly legislators) assumed they were the same, and would blame mismatches on debauchery or insanity. The scientific discovery of the distinction (as opposed to folk discovery; many cultures throughout history understood the distinction before it was established by science; as with many things folk wisdom often predates scientific knowledge) began in the 1970s in the field of psychology. It has since been extensively established by a vast body of published scientific research.
Technically the distinction was known to science before, in the field of anthropology, but only in the study of “non-Western” cultures. It took psychology to point out we had the distinction all along and were simply denying it. Western concepts of gender have subsequently been studied by anthropology as well, which has its own body of literature on the subject.
In short, in the 1960s, what everyone thought sex was, was almost always actually gender (e.g. who wears pants, who wears makeup, who wears jewelry, who uses certain tonal dialects and body language, who is “feminine” and who is “masculine,” and so on). When someone discriminated based on sex in 1964, they almost never knew the actual sex of the person in question; they simply assumed they knew their sex, by observing their performed gender. So all along, really, most of it was actually gender discrimination.
Now we know those aren’t the same thing. What people “see” as gender mostly has no connection to sex at all (e.g. dress, cosmetic, demeanor, voice, preferences), and even what does (e.g. visible effects of hormones on appearance and behavior) is on a spectrum and not a binary (e.g. there is no “female” and “male” body chemistry but a spectrum along which we associate one end as more masculine and the other as more feminine, but one actually can naturally fall anywhere on that spectrum, including in the middle, which would be “neither” or “both” depending on how you define terms; and with HRT, one can even choose where to fall on that spectrum now). Hence most of what we identify as gender is sociologically constructed and not biological (e.g. when the Founding Fathers wrote the Constitution, it was men who wore stockings, makeup, wigs, and ribbons in their hair).
On the history of this scientific discovery, Scientific American has a short bibliography. I summarize much of the subject, with links to associated science in Attack of the Lycanthropic Transsexuals!