The Supreme Court’s Bostock v. Clayton County decision today held that Title VII of the Civil Rights Act of 1964, which makes it “unlawful . . . to discriminate against any individual . . . because of such individual’s . . . sex,” applies to discrimination based not only on sex but also on sexual orientation and transgender status. The logic of Justice Gorsuch’s opinion, however, breaks down completely in the transgender case, in a way that is likely to lead to unanticipated consequences. The Court should have had the decency to admit what it was doing.
Justice Gorsuch’s reasoning goes back, over and over, to the same logical syllogism: If a man and a woman do the same thing and only one of them would get fired for it, that’s discrimination on the basis of sex. So, for example, if a woman and a man both bring a male spouse to the office Christmas party, and only the man gets fired, that’s sex discrimination.
But Gorsuch completely ignores the central issue in the transgender-discrimination case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, that was actually before the Court — and in a way that makes nonsense of his effort to use that syllogism to resolve the statutory question. 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.
Consider: What if the funeral home also employed a drag queen — a biological male (like Stephens) who identified as male (unlike Stephens) but dressed in women’s clothes (like Stephens)? The funeral home could say — truthfully — that it does not allow men to dress as women, and since the drag queen employee does not identify as a woman, it could argue that the drag queen was treated the same as any other man would be. Under the standard Gorsuch announces, Stephens and the drag queen are both biological men dressed as women. Could only one of them sue? To reach that result, the Court has to go beyond the simple syllogism and decide the underlying question: Who is a woman? Yet, just as it did in Roe v. Wade (deciding who is a human) or Obergefell v. Hodges (deciding what is a marriage), the Court actually decided the most important question in the case without even admitting it was doing so.
The alternative way of reading the Court’s decision, of course, is that the drag queen could sue because requiring any employee to comply with a sex-specific dress code requires the employer to know or decide who is male and who is female, and that by itself is sex discrimination. But Gorsuch claims not to be deciding that question:
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.
This is, frankly, disingenuous: The Harris case is entirely about sex-specific dress codes and the necessity that enforcing them requires employers to classify their employees by sex. The same is true of sex-specific bathrooms. The Court’s inability to answer those questions indicates its unwillingness to say out loud the reasoning of its decision about who is a man and who is a woman.
Editor’s Note: This article has been emended since its initial publication.