Bench Memos

Law & the Courts

‘Biology Is Not Bigotry’

Here’s an excerpt from the excellent amicus brief submitted on behalf of Ryan T. Anderson in the Title VII SOGI cases:

Respondents and their amici contend that any policy that adverts to sex must discriminate because of sex. Only in this way are they able to give Title VII a scope that for decades no one would have ascribed to it. And in the process, they are forced to rely on confused theories of discrimination and of sex. Over and over, Respondents and their amici offer crucially flawed analogies, comparators, and analyses that effectively read the words “discrimination,” “disadvantageous,” and “comparable terms” out of the law altogether. This distorted reading leads to absurd and costly results that cut against the balance Congress struck in crafting Title VII.…

As this Court explained in Oncale v. Sundowner Offshore Services, Inc., Title VII requires “neither asexuality nor androgyny.” It requires equality and neutrality. It forbids double standards for men and women—policies that disfavor at least some individuals of one sex compared to similarly situated members of the other. So, as the Court unanimously held in Oncale, quoting Justice Ginsburg: “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” This Ginsburg reading, embraced by the whole Court, remains valid. And yet Respondents and their amici explicitly reject it, as their position requires. This Court should hold fast to the Ginsburg reading—on which Title VII violations consist of double standards for women and men.…

Title VII forbids discrimination—in a word, unfairness—because of sex. It excludes, not just any sex-conscious standards, but double standards. Yet Respondents and their amici urge the Court to adopt a theory of sex discrimination that would rule out (as discriminatory) any policies that advert to sex, rather than only those sex-related policies that result in “disparate treatment of men and women,” where members of one sex suffer under “disadvantageous terms” that the other does not. That would lead to asexuality and androgyny.

Adopting Respondents’ theory … would require either the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than their objective biology. That Respondents and their amici are evasive about which of these outcomes is required by their theory is telling. Making its implications explicit would prove decisively that their reading is unsound.

It would also highlight the severe consequences for privacy, safety, and equality. Employers would be prevented from protecting their employees’ privacy and would be exposed to ruinous liability. They would have to cover objectionable medical treatments. Physicians would have to perform them against conscience. And the consequences would not be limited to the employment context. If this new theory of sex and of discrimination is imposed on Title VII, then why not Title IX? A Respondent-friendly reading of sex discrimination would spell the end of girl’s and women’s athletics, along with private facilities at school.…

Biology is not bigotry; this Court should not conclude otherwise. Only Congress, not this Court, can craft policy to address sexual orientation and gender identity—concepts distinct from sex—with attention to all the competing considerations.

Most Popular

Economy & Business

Who Owns FedEx?

You may have seen (or heard on a podcast) that Fred Smith so vehemently objects to the New York Times report contending that FedEx paid nothing in federal taxes that he's challenged New York Times publisher A. G. Sulzberger to a public debate and pointed out that "the New York Times paid zero federal income tax ... Read More

The ‘Welfare Magnet’ for Immigrants

That term refers to a controversial concept -- and a salient one, given the Trump administration's efforts to make it harder for immigrants to use welfare in the U.S. A new study finds that there's something to it: Immigrants were more likely to come to Denmark when they could get more welfare there. From the ... Read More