For almost 50 years, the country has been debating the enactment of state and local gay rights laws. Protections for gays and lesbians have been passed in 21 states and in over 400 localities. Recently, the debate has been extended to include transgender rights as well, with all the complications regarding bathrooms, locker rooms, and other aspects of daily life that those arguments entail.
On Monday, the United States Supreme Court, in a 6-3 opinion written by President Trump’s first appointee, Justice Neil Gorsuch, held that this entire debate and all of those laws arrived at through debate and deliberation have been totally unnecessary. Why? Because, whaddaya know? We’ve already had a federal gay rights law, and a federal transgender rights law to boot, on the books for 56 years!
Gorsuch, joined by Chief Justice John Roberts, found these provisions lurking somewhere in the penumbra of Title VII of the landmark Civil Rights Act of 1964, which bars employment discrimination “because of . . . sex” (or race, color, religion, or national origin).
Gorsuch wholly accepted the argument of the plaintiffs in the three cases before the court that the term “sex” must be understood to also mean “sexual orientation”—and “gender identity” as well for good measure—even though these aren’t mentioned in the text of the law; even though, as both Gorsuch and the plaintiffs acknowledge, this obviously wasn’t intended by Congress in 1964; even though Congress has since then repeatedly declined to amend the statute to add these prohibitions; and even though Congress has included the term “sexual orientation,” separately in addition to “sex,” in several other statutes such as the Violence Against Women Act and federal hate crimes legislation, showing its understanding that the two are distinct concepts.
A Queer Theory
The strained logic is that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” since “homosexuality and transgender status are inextricably bound up with sex.” Not just because they are “related to sex in some vague sense,” but because discrimination against gay men and lesbians and gender dysphoric individuals of both sexes is not just discrimination against them based on sexual orientation or gender identity but is actually discrimination against them for being men or women as well.
The theory is that if you fire a man who is attracted to men but not a woman who is attracted to men you’re discriminating against men, and if you fire a woman who is attracted to women but not a man who is attracted to women you’re discriminating against women.
Similarly, if you fire a biological male (excuse me, a “person who was identified as a male at birth” as Gorsuch puts it in his scrupulously politically correct opinion) who now identifies as a woman, but not a person “identified as female at birth” who still identifies as one, you’re discriminating against men (or at least against persons “identified as male at birth”). And if you fire a biological female who now identifies as a man, but not a biological male who still identifies as a man, you’re discriminating against biological women.
This is all too clever by at least half. For one thing, if you’re supposedly discriminating based on sex as well as sexual orientation against the 4 percent of men and 5 percent of women who are homosexual, then you’re at the very same time necessarily discriminating based on sex in favor of the 96 percent of heterosexual men compared to lesbians who are also attracted to women, and in favor of the 95 percent of heterosexual women compared to gay men who are also attracted to men.
Similarly, if you’re supposedly discriminating based on sex as well as gender identity against the minuscule percentage of biological men who identify as women (vis à vis biological women who do) and biological women who identify as men (vis à vis biological men who do), then you’re at the same time discriminating based on sex in favor of the at least 99 percent of biological men who identify as men (compared to the biological women who do), and the equal percentage of biological women who identify as women (compared to the biological men who do).
The theory is rendered even more absurd in the case of gender identity since it’s a point of doctrine among transgender advocates that biological men who identify as women are women and biological women who identify as men are men. So how can they be the victims of alleged gender-based discrimination against a gender they claim not to be a part of?
Gorsuch’s Torturous Rationale
The sleight of hand underlying Gorsuch’s intellectual house of cards is in the choice of comparators for determining whether there has been prohibited sex-based discrimination against gay or transgender employees.
For example, the relevant comparison in assessing whether a gay man has been discriminated against based on gender is of course not whether a straight woman has been, which changes two variables, but whether a gay woman has been. There was no evidence in any of the cases before the court that the employers were not discriminating equally against “LGBT” men and women; nor would there be in the overwhelming majority of gay and transgender rights cases. And the few cases in which there was evidence that, say, an employer discriminated against gay men but not lesbians would already be covered under Title VII. There was no basis or need to turn it into a national gay and transgender rights ordinance by judicial fiat in order to capture such cases.
Gorsuch’s rationale for doing so is torturous “smart boy” legerdemain. As I wrote after oral argument of this case last fall:
[To] claim, after Congress has consistently declined to add the term [“sexual orientation”] to the Civil Rights Act, that it was actually there all along, as part of “sex,” is disingenuous, cynical sophistry—the kind … 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.
Unfortunately, this kind of sophism appeals not just to progressives but also to the kind of honor-roll “conservatives” who spent their summer days inside playing studying for the SAT rather than outside playing baseball. The fallacy at the heart of their susceptibility to this—what leads even conservative intellectuals like R.R. Reno and Kevin Williamson who demolished Gorsuch’s drivel, nonetheless to call it “elegant” and “impeccable”—is the assumption that anything that’s intellectually difficult to understand and refute must have intellectual substance.
In fact, as I learned as a government lawyer defending against the equally spurious claims of pro se plaintiffs and Harvard-trained “public interest” lawyers, the stupider an argument the harder it is to explain why it’s stupid. It’s like trying to define “the.” Ordinary people have an inchoate sense of this that intellectuals don’t, as George Orwell alluded to in his famous line “some ideas are so stupid that only intellectuals believe them.”
I hope I’m right in my analysis of what led Gorsuch astray here, for it suggests that he will just be an overgrown boy on the court, occasionally embarrassing himself by trying to show off to his peers how smart he thinks he is, but generally a reliable conservative justice as opposed to a full-blown Kennedy, Souter, or Blackmun—continually “evolving” and “growing” in response to the lure of elite approbation.
The stakes are great. Even if this decision is a one-off, it will do tremendous damage to the law far beyond Title VII. In his blistering dissent, Justice Samuel Alito listed 15 pages of federal statutes barring sex discrimination, many involving education, that have now been effectively rewritten to remove the sensitive issue of biological boys and men in girls’ locker rooms from the arena of legislative compromise. If I’m wrong and Gorsuch (and Roberts?) have gone “woke,” then the Biden-Kamala Harris Court is here early and the outlook is ominous.