In oral arguments for the recently decided case of Bostock v. Clayton County, Justice Neil Gorsuch worried that extending Title VII protections to transgender people would “entail . . . massive social upheaval.” Part of the 1965 Civil Rights Act, Title VII prohibits employment discrimination based on race, color, religion, national origin, and—crucially—sex. When it came time to write the majority decision, however, Gorsuch seemed to have stilled his fears, or at least reasoned that remaining true to his “textualist” reading of the law more than outweighed the social and political consequences. This is a doubtful judgment; even if the Bostock decision is correct in a narrow legal sense, it is horribly unwise and potentially catastrophic.
As the Supreme Court has become an increasingly central front in our increasingly bitter culture wars, it’s no surprise that Gorsuch’s opinion has caused a ruckus. Conservatives, particularly conservative Christians, many of whom justified their tolerance of Donald Trump’s presidency based upon his choice of judicial nominees, feel betrayed. Progressives are jubilant, if surprised and mistrustful that a Trump justice seems to have given them a big victory.
Personally, I am worried. I applaud the outcome but am prone to jeer the means. There is a smarty-pants quality to Gorsuch’s reasoning that seems likely to delegitimize the basis for trans legal rights, forestall the larger and more important questions of social toleration and acceptance, and increase the prospects for a backlash against transgender men and women.
At the heart of the matter—both in Gorsuch’s decision and in our broader public life—is the relationship between transgender “identity” (or “status,” in the language of the Supreme Court), biological sex, and the definition of manhood and womanhood. Transgender activists frequently assert that how a person self-identifies should be dispositive; a man can “transition” to become a woman, and vice versa. Conversely, conservatives assert that biology is destiny; it is charitable to be socially polite to transpeople and try to ameliorate their feelings of gender “dysphoria,” but their essentialist claims must be refuted and denied. As transgender figures have become more prominent in the last decade or so, this debate—about a tiny minority of us—has heated to a boiling point. And increasingly, feminists are fearful that the educational benefits conveyed to women under Title IX—“No person in the United States shall, on the basis of sex . . . be subjected to discrimination under any education program or activity receiving Federal financial assistance”—will be put at risk. In this regard, Gorsuch has grabbed a powerful “third rail” in American life; “massive social upheaval,” indeed.
The Case and the Decision
Bostock v. Clayton County was a catch-all vehicle for three separate Title VII cases. Gerald Bostock was a long-time employee of Clayton County, Georgia, who was fired for “unbecoming” behavior when he joined a gay man’s softball team. Also subsumed in the court’s consideration was the case of Donald Zarda, who worked for a sky-diving company and was terminated when he mentioned to a client he was gay. Finally—and this is the element of the decision that is most likely to cause the greatest social upheaval—Aimee Stevens was working for the R.G. and G.R. Harris Funeral Homes. When hired, she “presented” as a male, but was fired in 2013 when she told her boss that she planned to “live and work full-time as a woman” and would dress accordingly at work. The funeral home justified the firing on the ground that Stevens, despite her transgender “status,” remained a man and thus had to follow the company’s sex-specific dress code.
In granting its writ of certiori to review the 11th Circuit Court’s ruling in favor of the funeral home, the Supreme Court reframed the matter to shift focus from what Congress’s intent and purpose was in making the law in 1964—the basis of the funeral home’s argument—to what the “plain meaning” of the code’s test is. As Gorsuch put it in his majority opinion, “legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts.” This boils the school of “textualism” down to its barest bones; one wonders why there was a case in the first place. It also seems nearly silly in the case of “sex,” whose meaning is all but plain these days.
And if there were no ambiguity, one is also free to wonder why, in recent legislation, Congress has taken care to include specific language protecting “sexual orientation” and “gender identity” to Title VII. This was a key provision of the House of Representatives’ controversial “Equality Act” of last year. Why fix what isn’t broken? Why have states—roughly half of them—likewise enacted such protections in their law if this were plainly dealt with in Title VII?
In their dissent, justices Alito and Thomas charged that the majority had legislated from the bench. But it is perhaps more accurate to say that Gorsuch preempted the legislative and democratic process. This is likely to have pernicious consequences, especially for transgender people, where the question of “sex” is very much open and uncertain. Like many transwomen, Aimee Stevens simply wanted to keep her job while “living as a woman”; she appears to have made no essentialist claim to be a woman. Gorsuch’s “but-for” textualism seems to have swept that question aside: Stevens lost her job, he wrote, “for traits and actions that it would have tolerated” in women.
Gender identity or, in the court’s words, “transgender status”—whatever that may mean—is a qualitatively different kettle of fish than homosexuality. Homosexuals embrace the plainest, most biological meaning of “sex.” Gay men love other men; lesbians love other women. Indeed, as Andrew Sullivan has written, “The core of the traditional gay claim is that there is indeed a very big difference between male and female, that the difference matters, and without it, homosexuality would make no sense at all.” I strongly suspect that most transpeople agree that the difference matters—and that this also helps to explain the power of transgender desire and the depths of transgender despair, the mingled euphoria and dysphoria.
Perhaps the oddest aspect of the Gorsuch opinion is the way it embraces both traditionalism and “transgenderism”—that is, the leftist, deconstructionist doctrine now predominant among the trans-rights activists. The decision observes that the contending “parties concede that the term ‘sex’ in 1964 referred to the biological distinctions between male and female.” Conservatives believe that this remains the plain meaning of the term, and that, unless and until future science makes it possible to change this biology, it is immutable. Trans activists, inspired by leftist thinking, often assert a similar essentialism, by which a chosen “gender identity” becomes “sex.” In talking about transgender “status,” Gorsuch’s opinion does not dwell on how the transition occurs, except by passing reference to “checking a box,” as though on a job application. This may be a personally genuine standard, but it cannot be regarded as an objective one. Some number of transpeople change their mind and “de-transition.” That this is a small percentage of an already miniscule minority of Americans matters not; “trans-essentialism” rests on very shaky footing.
Gorsuch is also coy about the larger legal implications of his textualist semantics. “What are these consequences anyway?” he asks.
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. . . . Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
This language passes from textual cleverness to disingenuousness. Title VII and Title IX are part of the same law; how is it possible for “sex” to mean one thing in employment and something different in education? Advocates are certain to push this line and lower courts to see a precedent. In an interview with NBC News, Jennifer Levi, an attorney with GLBTQ Legal Advocates and Defenders, or GLAD, a New England social-justice organization, said the transgender rights defined in the Bostock ruling will have “broad implications” for “housing, education, credit, health care and beyond that as well.”
Progressives are chomping at the bit to bring new cases—“textualism” in the service of intersectionality. GLAD has already brought a heath care suit. Rutgers law professor Katie Eyer, who filed an amicus brief on the Bostock case—anticipating what is now the line of the Human Rights Campaign—sees Gorsuch’s decision as a new and powerful legal tool. “[T]here will be many fronts in the continuing equality struggles—for LGBTQ workers, for black and brown victims of police violence, for disabled students denied educational equality, for women subjected to harassment and violence,” she recently wrote. “And in those legal struggles, textualism will afford an important tool.”
Consequences to Come
The likely conservative counter to progressive textualism will be to try to expand the “religious freedom” exceptions of Title VII to defend the line between gender and sex. Gorsuch himself left open the idea that his reasoning in Bostock might be “superseded” by religious liberty claims protected by the “free exercise” clause in the Constitution and elaborated in the 1993 Religious Freedom Restoration Act. The Supreme Court, in cases such as 2014’s Burwell v. Hobby Lobby and 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, has done a fair share of superseding lately, with Gorsuch playing a prominent role. Gorsuch reckoned there would be “adversarial testing” of his Bostock ruling. He’s going to get it, whether beneficial or not.
The religious freedom provisions, be they constitutional or statute, are likely to prove a thin reed, even for a conservative court. The Masterpiece Cakeshop case was hardly a decisive result; it did not uphold baker Jack Philips’s religious freedom rights, merely that the Colorado Civil Rights Commission had demonstrated anti-religious bias in prosecuting him. Nor does it answer the question of religious institutions as employers—such as Catholic hospitals and schools.
The most powerful testing may not come from social or religious conservatives, but from feminists and the women’s movement more broadly. It’s all the questions Gorsuch did not “purport to address”—all sex-specific provisions, not just bathrooms and locker rooms, but schools, school dormitories, sports teams, and the like—that are likely to provoke an adversarial response. Indeed, the U.S. Commission on Civil Rights already is arguing that Gorsuch’s reasoning should be applied to Title IX, which prohibits discrimination “on the basis of sex” in Federally assisted education programs. As though to expedite things, Justice Alito added an appendix to his dissent that listed more than 100 other pieces of legislation, including the 1968 Fair Housing Act, with similar provisions.
In other words, it isn’t merely “trans-exclusionary” or “radical” feminists of the Germaine Greer sort who might feel threatened by Gorsuch’s “but-for” razor. Much of the progress made by women in American life over the past generation has been—or certainly is believed to have been—the result of the sex-specific provisions in civil rights legislation, with Title IX as the iconic example. This past summer, for instance, when the U.S. Women’s National Soccer Team won its second straight World Cup title, it was hailed as a triumph not only for an exceptional group of athletes but for Title IX. As Betsy Butler, a member of the California State Assembly and director of the California Women’s Law Center, wrote in the Los Angeles Times, “long before [the women of the national team] were born, civil rights advocates and legislators were hard at work clearing their path to success.” To the degree that Gorsuch’s Bostock precedent poses a threat to the entrenched practices that “have cleared the path to success” for American women—particularly professional women for whom success also has brought political power—the “adversarial testing” could be severe.
Thus might Bostock become a kind of transgender version of the Roe v. Wade abortion case. Whatever one thinks about abortion, one aspect of that 1973 decision cannot be denied: It prevented the country from coming to a legislative, political, widely legitimate conclusion on the issue. Even Justice Ruth Bader Ginsburg has noted the consequences of judicial overreach. The Roe decision, she said in 2018,
displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed? . . . A less encompassing Roe, one that merely struck down the extreme Texas law [that was at issue in the case] and went no further on the day I believe . . . might have served to reduce rather than to fuel controversy.
As the recent Supreme Court decision on Louisiana’s attempts to limit the practice by requiring doctors performing abortions to have admitting privileges at local hospitals reminds us, the controversy sparked by Roe is far from over. And “controversy” is a mild term to describe the divide on the issue—abortion factions have been institutionalized into America politics, almost rent-seeking in their preference for confrontation over compromise. In this way, the Bostock decision seems less likely to end our present controversy over transgender rights than to enflame it. This is particularly true given the bitter and partisan fever wracking our current politics, itself reminiscent of the early 1970s. Progressives and conservatives have come to prefer the struggle to any resolution. That the yelling goes over the head of many transpeople seems not to matter.
Weirdly, it is the polemics of the activist left that seem most out of tune with the day-to-day concerns of transgender people; the woke, intersectional-stereotyping, enforced-equality mania of the moment is the greatest erasure of trans individuality. For what gets me through the day, much more than court rulings, is the cultural accommodation provided by the increasingly tolerant society in which we live. The oh-so-normal life I can live now was unimaginable until recent years, and it’s the normalcy of it that I most appreciate. I also appreciate that the legislature in Maryland, where I live, has enacted positive law that protects my opportunities for employment; even if the text of the law struggles to define “gender identity” in an objective way, my fellow Marylanders have recognized my basic, individual citizenship rights. And I’d prefer to keep my restroom habits private and not political.
Change is afoot in ways that promise a better life for transgender people but stand outside the power and purview of the courts. Even Gorsuch noted in his Bostock opinion that several dozen states already have laws of one kind or another prohibiting discrimination against transgender men and women. Those laws provide the kind of legitimizing power that comes from the consent of the people expressed by their elected representatives, something no semantics-parsing court ruling can rival. Gorsuch’s “razor” may have sliced neatly through the language of Title VII, but it is going to shred other provisions of civil rights law as well. And it threatens to tear our already gaping social and political wound ever wider—with transgender people experiencing the deepest cut of all.