Now, whatever one may think about these three cases as a matter of ethics or policy, Congress acted in 1964 to address only the first case—and it has explicitly rejected policies to address the latter two. People can debate whether Congress’s decision not to pass sexual orientation and gender identity laws is or is not a good thing, but as a legal matter, the issue is clear. Discrimination on the basis of sex is prohibited, but discrimination on the basis of sexual orientation and gender identity is not—for it is not included in “sex” even if “inextricably bound up with sex.”
Of course, there is good reason why Congress has rejected calls to legally prohibit “discrimination” on the basis of “sexual orientation and gender identity.” Much of what the activists contend is “discrimination” is simply disagreement about human sexuality, where acting based on true beliefs about human sexuality is redescribed as discriminatory.
The Implications of Gorsuch’s Ruling
Which is why it is troubling that Gorsuch wasn’t willing to consider what his theory of sex discrimination entails for other employment considerations or for other federal laws. He notes that many people:
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. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
But the simple test Gorsuch applied to answer “yes” to this question yields ready answers in all these other contexts. Just recall the bathroom and dress code examples given above. Or consider a case of athletics, where “changing the [student’s] sex would have yielded a different choice by the [principal].” A high school male who identifies as a girl but is prevented from entering the girls’ locker room or playing on the girls’ basketball team. What would Gorsuch say? “the [principal] intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in a [student] identified as female at birth.”
Gorsuch’s position would either require the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than his or her objective biology. It is telling that Gorsuch is evasive about which of these outcomes is required by his theory.
— Robert P. George (@McCormickProf) June 17, 2020