‘If the man who identifies as a woman were in fact a woman, it wouldn’t be sex discrimination to treat him differently from other women…’
(Joshua Paladino, Liberty Headlines) The Committee for Justice, a legal group that promotes constitutionalism in the judiciary, hosted a panel about the Supreme Court‘s Bostock decision to discuss whether it amounted to principled textualism or judicial activism.
In the Supreme Court’s ruling, Justice Neil Gorsuch, a Trump appointee, said he reasoned from the text of the Civil Rights Act to conclude that discrimination on the basis of gender identity and sexual orientation requires sex-based discrimination, which the law prohibits.
Committee for Justice President Curt Levey said Gorsuch stretches the textual meaning of the Civil Rights Act in his decision but does not account for the time period in which it was written, 1964, when gender identity and sexual orientation were not yet popular concepts.
“If we give Gorsuch the benefit of the doubt, he still runs into the problem that his interpretation is completely at odds with the legislative intent,” Levey said. “Not even the plaintiffs who brought these cases claimed that anyone in Congress intended the statutory text to reach sexual orientation and gender identity.”
Levey said recent congressional legislation that would have extended the Civil Rights Act to cover gender identity and sexual orientation make clear that Congress, even this year, believed the law needed to be amended.
“In some sense, the irony here is that with public opinion rapidly changing, Congress likely would have extended Title VII to LGBT discrimination in the near future,” he said. “And then it would have had the imprimatur of bipartisan support. Instead, it really has the taint of being imposed by unelected judges.”
The Public Religion Research Institute found last year that a majority of Americans–Democrat, Republican, or independent–thought non-discrimination laws should protect LGBT people, NBC News reported.
Edward Whelan, president of the Ethics and Public Policy Center, said he disagreed with Levey’s opinion that the ruling does not stand out as a new, anti-conservative decision like Obergefell or Roe.
“I think it is a terrible decision legally,” Whelan said. “I think it will [have] horrible and, in many ways, completely unforeseen consequences for years and years, and I think conservatives are entitled to be livid about it.”
Whelan said Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh—who all dissented from Gorsuch—sought to understand the “ordinary meaning” of Title VII.
Alito said homosexuality was classified as a mental disorder in 1964, so no one would have considered “sex” to include “sexual orientation.”
Whelan said Gorsuch’s opinion does not reconcile the long-held opinion that Title VII is compatible with sex-specific standards, such as dress codes.
He said Gorsuch’s opinion contains one piece of reason in that it reinforces the biological reality of binary sex.
“In the end, for all the faults of his opinion, it’s predicated on the proposition that a man who identifies as a woman is in fact a man,” Whelan said. “And it’s because of that, in Gorsuch’s view, that it’s discrimination on the basis of sex to treat a man who identifies as a woman differently from a woman.”
“If the man who identifies as a woman were in fact a woman, it wouldn’t be sex discrimination to treat him differently from other women.”