Law & the Courts

A Dilemma for Gorsuch’s Core Reasoning in Bostock

Justice Neil Gorsuch (Bill O’Leary/The Washington Post via Getty Images)
How does the ruling apply to businesses with sex-specific policies?

If you’re a conservative, upon hearing the news that the Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 — which prohibits discrimination on the basis of sex — covers discrimination on the basis of gender identity (and sexual orientation), you’d likely assume that the Court simply endorsed a radically revisionist view according to which your sex is entirely determined by, or identical with, your gender identity.

But this was not the basis of the Court’s decision. Rather, Neil Gorsuch, writing for the majority, based the Court’s ruling on the claim that discrimination on the basis of gender identity (and sexual orientation) necessarily involves discrimination on the basis of sex. Accordingly, if discrimination on the basis of sex is made illegal by the Civil Rights Act, so is discrimination on the basis of gender identity (and sexual orientation). He writes:

An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Tiana Lowe is correct when she notes that this ruling actually depends on the legitimacy of the biological definition of sex:

To be clear, the court could deliver one of greatest legal protections for gay and transgender workers specifically because it acknowledges a fact deemed heretical by the most vocal woke activists: Namely that biological sex is real.

For years, the wokes have attempted to cancel everyone from right-wing trolls to liberal scientists for pointing out that biological sex is a scientific reality, one that specifically validates gay and transgender folks as a distinct class. And now the court has decided that because of that distinction, they’re a protected class.

Transphobia used to mean refusing to address someone by their preferred pronouns or denying their gender identity. Now, it’s morphed into meaning that you acknowledge that transgender males are “transgender” precisely because they were born biological females. But today’s SCOTUS ruling proves that bifurcating the meaning of biological sex from gender identity is specifically what confers special protections onto gay and transgender workers.

In short, Gorsuch’s reasoning requires that we consider transgender persons to be the sex that they were “assigned at birth,” not the sex with which they identify.

However, this reasoning leads to a difficult dilemma when it comes to applying Bostock to businesses that enforce sex-specific policies, such as sex-specific dress codes.

The Court assumes that their decision applies in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, a case involving a business with a sex-specific dress code. In that case, Stephens, a biologically male employee, transitioned and began to live as a woman. Accordingly, she began to dress in the attire required by the Harris Funeral Home for female employees. Stephens was then fired for refusing to dress in the attire required by the business for male employees.

At NRO, Dan McLaughlin argues that the Court must assume that Stephens is a woman in order for the decision to apply to Harris. Thus, it turns out that the Court is, in fact, re-defining “woman” in the course of its decision — it’s just guilty of an “unwillingness to say out loud the reasoning of its decision about who is a man and who is a woman”:

In Harris, a funeral home had separate dress codes for men and women; a biological male (Stephens) began “living as a woman” and was fired for dressing as a woman. Under Gorsuch’s reasoning, this would qualify as sex discrimination because a woman would not be fired for dressing as a woman. But that assumes that the Court has decided whether Stephens is a woman, which of course is the entire question in debate in arguments about the legal and social status of transgenderism. In fact, Stephens contends that Stephens is not a man. The Harris Funeral Home enforced its dress code against Stephens not to discriminate against women dressing as women, but because it believed that Stephens was a man. The Court’s decision assumes that this is a decision that can be punished — an assumption that would have made no sense at the time the statutory term “sex” was written, in 1964.

But this is mistaken. If Stephens is assumed to be a woman, then discrimination on the basis of gender identity actually passes the Gorsuch test: Stephens would no longer be a man who is fired for doing something (dressing in the attire required of female employees) that a woman would not be fired for doing. Instead, Stephens would be a woman who is fired for doing something that other women are not fired for doing. And Bostock does not offer protection from discrimination on the basis of one’s “trans status” as such — on being a trans woman rather than a cis woman.

However, McLaughlin comes close to detecting the real problematic implication of this ruling: If this reasoning applies to Harris, it’s very hard to see how it doesn’t apply to all cases in which an individual is fired for defying a sex-specific dress code (or any other sex-specific policy), whether a trans person is involved or not. McLaughlin’s drag-queen case is case in point. If Bostock protects a trans person who violates a sex-specific dress code, then it’s hard to see how it doesn’t also protect a drag-queen who chooses to cross-dress for reasons other than trans-related gender expression. Indeed, it’s hard to see how Bostock doesn’t protect anyone who chooses to defy a sex-specific dress code (or other sex-specific policy) for any reason. If Stephens cannot be fired for dressing in the attire required of female employees — because that is something a woman would not be fired for doing — how can any man (and the ruling assumes that he is a man!), trans or not, be fired for dressing in the attire required of female employees?

As McLaughlin notes, Gorsuch explicitly denies that Bostock covers cases involving sex-specific dress codes, bathrooms, and the like:

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.

McLaughlin calls this “disingenuous,” given that Harris was before the Court. I call it a dilemma: Either Bostock protects Stephens, a trans person who violated the Harris Funeral Home’s sex-specific dress code, in which case it protects anyone who violates a sex-specific dress code or policy (whether they are trans or not), or else Bostock does not apply to firings related to violations of sex-specific dress codes at all, in which case it does not apply to Harris. The Court cannot have it both ways.

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