Bench Memos

Law & the Courts

Bostock Majority: A ‘Trans Woman’ Is Not A Woman

In his majority opinion in Bostock v. Clayton County, Justice Gorsuch dutifully parrots some of the rhetoric of transgender ideology. In its ruling in the funeral-home case, the district court stated straightforwardly:

The Funeral Home hired Stephens in October of 2007. At that time, Stephens’s legal name was Anthony Stephens. All of the Funeral Home’s employment records pertaining to Stephens — including driver’s license, tax records, and mortuary science license — identify Stephens as a male.

Stephens served as a funeral director/embalmer for the Funeral Home for nearly six years under the name Anthony Stephens.

Gorsuch instead turns this into: “Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male.”

Similarly, in presenting his argument that discrimination on the basis of gender identity is sex discrimination, Gorsuch speaks of “a transgender person who was identified as a male at birth.”

But what these pious evasions obscure is that Gorsuch’s statutory analysis, for all its flaws, is predicated on the proposition that a man who identifies as a woman—a so-called transgender female, in transgender lingo—is in fact a man. (And likewise, of course, for a woman who identifies as a man.) Gorsuch’s opinion not only “proceed[s] on the assumption that ‘sex’ [in Title VII] … refer[s] only to biological distinctions between male and female.” His entire reasoning in favor of Stephens turns on the fact that Stephens was indeed a man when the funeral home fired him.

Consider this key passage from Gorsuch:

[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

If a person “who was identified as a male at birth” had actually somehow become a female at the time of the contested employment action, it would make no sense to say that an employer who treated that female differently from other females was discriminating on the basis of sex. It is precisely because Stephens remained a man from birth through the time he was fired that Gorsuch can say that the funeral home “penalize[d]” him “for traits or actions that it tolerate[d] in” women.

In short, Gorsuch and all the justices in the majority reject, implicitly but emphatically, the radical transgender claim that “trans women are women” and that “trans men are men.”

More broadly, as Ryan Anderson argues in this excellent piece, Gorsuch’s opinion is built on the “gender binary” that transgender ideologues reject. His reasoning applies to men who identify as women and to women who identify as men, but it doesn’t apply at all to individuals who identify as any of the dozens of other genders that are said to exist. Simply put, if an employer decides not to hire (or decides to otherwise penalize) anyone who identifies as “genderqueer” or “pangender” or “agender” or “gender fluid,” the employer’s decision is obviously not treating men (oops, people who were “identified as male at birth”) any differently from women and therefore does not amount to sex discrimination.

Similarly, Gorsuch’s reasoning on sexual orientation extends protections to gays and lesbians but not to bisexuals. An employer who decides not to hire anyone who identifies as bisexual doesn’t treat men and women differently.

The notion that the ordinary meaning of Title VII when it was enacted in 1964 (or any time since) embodies these distinctions embedded in Gorsuch’s reasoning is of course preposterous. That’s just further evidence that Gorsuch’s reasoning is deeply unsound.

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