Put aside all the emotionally overwrought rhetoric you’ve been hearing in the mainstream media about the gay and transgender rights cases argued in the Supreme Court this week. The cases are not about whether there should be laws protecting gay and transgender employees against employment discrimination. That’s up to Congress and the state and local legislatures, many of which have enacted laws banning such discrimination, and several of which have extended this protection to transgenders.
Let’s back up for a second to review some basics. Under our system of government, the legislative branches make the laws and the courts interpret them. And while most Americans have an admirable sense of fairness that reflects the spirit of the Equal Protection Clause in the 14th Amendment to the Constitution, there is no general rule barring all discrimination. Employers, landlords and others are generally free to discriminate against Republicans, Mets fans, or people with red hair. The only exceptions are for a handful of “suspect classes” such as racial minorities deemed to be protected under the Equal Protection Clause against discrimination by government, and for those specifically protected against private discrimination by a state or federal law such as Title VII of the landmark Civil Rights Act of 1964, which bars employers from discriminating based on “race, color, religion, sex, or national origin.”
The cases before the Court involved two employees who allegedly were fired for being gay (the facts are in dispute) and a funeral parlor employee formerly known as Anthony Stephens who was terminated after returning from a two-week vacation as a woman named Aimee. The employees sued under Title VII, claiming that its ban on sex discrimination must be read also to ban discrimination based on sexual orientation or gender identity—even though these aren’t mentioned in the text of the law, even though, as plaintiffs concede, this obviously wasn’t intended by Congress in 1964, and even though Congress has since then repeatedly declined to amend the statute in this fashion. In other words, the plaintiffs seek to turn Title VII into a national gay and transgender rights ordinance by judicial fiat.
When Lawmakers Meant Something They Clearly Didn’t
What the plaintiffs’ position comes down to is that all the debates about local and state gay rights laws from the last 45 years, and the laws themselves, have been totally unnecessary since, waddaya know, we’ve already had a federal gay rights law since 1964! The legislators who passed the law just didn’t know it at the time. And, further, the debate we are just beginning to have on transgender rights laws, with all the complications those laws entail (locker rooms, anyone?) is also unnecessary because, waddaya know, we’ve had that for 55 years too!
Prior to 2017 every federal Circuit Court of Appeals had rejected this far-fetched contention, but since then three, flush with the rainbow zeitgeist in the wake of the 2015 Obergefell gay marriage ruling, have reversed themselves. Two of those decisions were among the three heard by the Court this week.
For all the legal gussying in the majority opinions in those cases and the plaintiffs’ briefs, their argument, essentially, is that in our enlightened age the term “sex” must be understood also to mean “sexual orientation,” and “gender identity” as well for good measure. But “sex” and “sexual orientation,” not to mention “gender identity,” have always had distinct meanings. We know, for example, that the term “sexual orientation” only came into being with the beginning of the gay rights movement in 1969, five years after the Civil Rights Act was passed. And for the first 45 of the 50 years since then it never occurred to even the most fervid gay activists to say that “sex” included “sexual orientation” and that there was therefore already a federal gay rights law on the books. Rather they went about trying to get Congress and state and local legislatures to add “sexual orientation” to existing civil rights laws, with some notable success at the state and local level but not at the federal level. They did, however, get Congress to include the term “sexual orientation,” separately in addition to “sex,” in several other statutes such as the Violence Against Women Act—showing that Congress didn’t think that one term subsumed the other.
For the left to turn around and claim, after Congress consistently has declined to add the term to the Civil Rights Act itself, that it was actually there all along, as part of “sex,” is disingenuous, cynical sophistry—the kind of legerdemain that the clever boys and girls regularly use to flummox the deplorables. The average guy and gal who didn’t go to a Top Ten law school can’t quite explain why it’s wrong but they know that the elite is once again pulling a fast one on behalf of one of its favored groups.
The Sophistry of the Elite
And let’s examine this sophistry under the supposedly rigorous logic taught at these top law schools. Sex discrimination, like race discrimination, always has been understood to mean discrimination against a class of people based on their sex or race. You don’t hire women or you don’t hire blacks, or you hire them at a materially lower rate than men or whites and there’s no legitimate explanation for the discrepancy. But here the plaintiffs’ argument is not that you’re discriminating against women or men as a class. It’s that you’re discriminating against the four percent of men and 5 percent of women, who are primarily attracted to their own sex. Their strained theory is that you won’t hire a man in the 4 percent attracted to men when you would hire a woman who is attracted to men, and you won’t hire a woman in the 5 percent attracted to women when you would hire a man who is attracted to women.
Of course this means that not only are you not discriminating against 96 percent of men and 95 percent of women, you’re in fact discriminating in favor of them. That is, if you’re in fact discriminating against homosexual men compared to straight women based on their gender and not just their sexual orientation, then under the same theory you’re necessarily discriminating in favor of the 96 percent of heterosexual men vis à vis supposedly similarly situated lesbians (similarly situated in that they all like women). And if you’re discriminating against those same lesbians based on their gender rather than their orientation, you’re also discriminating in favor of the 95 percent of heterosexual women vis à vis gay men.
Imagine a race discrimination case based on the claim that the defendant is allegedly discriminating against only 4 percent of blacks, but is also discriminating against 5 percent of whites in favor of blacks!
Be Careful What You Wish For
The theory gets even more convoluted when it comes to gender identity. The reasoning is that you’re discriminating against the miniscule percentage of biological men who think they’re women compared to biological women who think they’re women, and against the miniscule percentage of biological women who … well, you get the rest. But of course it’s a point of doctrine among transgender advocates that biological men who think they’re women are women and biological women who think they’re men are men. So the whole gender discrimination theory goes out the window.
Oh sure, you can contort yourself like Rosemary Woods to try to shoehorn at least the sexual orientation cases into a theory of gender-based discrimination, but law, language and logic all opt for a more parsimonious descriptions of a set of facts when possible. If only there were another term that more neatly and straightforwardly described all the various conflicting and confusing “discriminations” alleged to be going on here under the “sex discrimination” theory.
Oh, wait, there is such a term—sexual orientation. All homosexuals allegedly are being discriminated against compared to heterosexuals based on their sexual orientation. That’s a lot simpler than the mouthful it took me to try to describe the sex-discrimination theory. If gays and liberals want to ban this they should go back to Congress to make their case again, not hide behind the robes of judges piously promulgating newspeak.
To liberals this may all be details—got to break eggs to make an omelet, arc of history and all that—but they should be careful. If “progressive” courts can simply rewrite statutes like commissars in 1984 then conservative courts can too. This happened 100 years ago when courts simply wrote early civil rights and worker protection laws out of existence. It’s not an era to which liberals or anyone should want to return.