Remy Green and Avika M. Cohen have launched a series of articles explaining why the tirelessly reiterated tautology of Justice Gorsuch’s Bostock decision is not just correct, but obviously correct. Further, they argue that critics of the statement — from Alito on down to little old me — constantly acknowledge its correctness while trying to dispute it. Having decided that the airless logic is unassailable, they pronounce us all asphyxiated.
Once again, the “argument” is that one has to know a person’s sex to know whether they are homosexual or transgender. Therefore, all discrimination based on sexual orientation or gender identity is ipso facto a subspecies of sex discrimination. Alito’s examples of times when the federal government itself managed to practice SOGI discrimination without ever consciously taking into account the sex of the individuals is ignored, of course.
They’ve done nothing to disprove the critic’s argument that Gorsuch’s ruling vindicates a contested view of human nature only by smuggling them in as presumptions and starting points. Nor do they contend with the run-on consequences of such a ruling, pointed out in the WSJ by David Crawford and Michael Hanby, that “It is impossible to redefine human nature for only one person.” Such an argument would bolster the opinion of Justice Kavanaugh that treating SOGI discrimination as sex discrimination doesn’t just present logical traps but also doesn’t make sense historically — or sociologically either. Being a gay man isn’t equal to being a woman. Asserting this was, until recently, recognized as not just homophobic but misogynistic.
Green and Cohen simply assert that same-sex marriage and marriage between a man and a woman is not only legally the same thing, but cannot be distinguished in any way whatsoever. “The only conceivable difference in the act itself is the subjective philosophical and moral weight with which the employer views the act because of the sex of the actor,” they write.
But the larger problem is that they just keep repeating the assertion — taken from Gorsuch, that knowledge of sex is necessary for SOGI discrimination (itself contestable) — therefore SOGI discrimination is in some way sex-based. “As the law literally says — and means — ‘sex’ can’t be a relevant factor in a negative employment action without raising a Title VII question,” Green and Cohen harrumph.
Gorsuch’s theory does not test for sex discrimination. In a case of sex discrimination, sex must not only be a “but-for” cause of differential treatment; that differential treatment must also entail disadvantageous terms or conditions to which members of only one sex are subjected. The simplistic test that Gorsuch puts forth looks for the “but-for” cause and “negative” treatment, but it doesn’t link the two: It doesn’t look for disadvantages directed at individuals of only one sex. He’s offered half a theory of sex discrimination.
Along numerous other falsehoods, exaggerations, and misstatements that are beyond this blog post, they misrepresent the writer Hadley Arkes, portraying as a recent fit of pique an argument he’s made about the role of natural law in jurisprudence for decades.
Green and Cohen end their case against everyone by reassuring everyone that with the Bostock decision “the sky didn’t fall.” Which is the same defense one could make of any event in human history. That is: not a very good one at all.