The Supreme Court has redefined the 1964 workplace sex discrimination law to cover “transgender” people who claim to have changed their sex.
The huge political decision follows a sustained lobbying campaign by gay and transgender groups, wealthy transgender activists, law school professors, and other elite groups. It was issued despite polls showing Americans prefer their laws and civic rules to recognize the different preferences and needs of men and women, boys and girls.
“There is only one word for what the Court has done today: legislation,” said a dissent by Judge Sam Alito and Justice Clarence Thomas. “The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”
“Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law,” said another dissent by Justice Brett Kavanaugh. “Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way.”
The court’s June 15 decision in Bostock vs. Clayton County, Georgia, will have far-reaching consequences outside the workplace, as progressives and transgender groups try to expand the decision to many other areas of society.
Alito and Thomas wrote:
The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.
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Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates.
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This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.”
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Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.56 Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.
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Freedom of speech. The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories.
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The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily,
The two judges warned “Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
The decision gives the power to decide similar questions to federal judges — unless Congress passes legislation to reassert society’s recognition that men and women are different.
Congress is unlikely to reclaim its power to maintain the civic distinction between men and women, in part, because the votes of 60 senators are needed to reverse the Court’s redefinition.
The six-judge majority on the court said:
The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule.
The Court argued that Congress’s 1964 bar against sex discrimination applies to gays and people who claim to have changed sex, even if Congress did not know it:
The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts … While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning.
The decision combined two cases. One case was about whether the 1964 workplace sex-discrimination laws cover gay and lesbians. The second case was on whether a person’s claimed sense of “gender identity” allowed them to claim workplace sex-discrimination against their transgender status.
All four progressive judges voted to expand the Court’s definition of biological sex to include the transgender claim of internal “gender identity.” They are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.
Two GOP appointed judges supported the expansion — Chief Justice John G. Roberts and Justice Neil Gorsuch.
Kavanaugh slammed the majority’s decision:
We are judges, not Members of Congress.
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First, courts must follow ordinary meaning, not literal meaning. And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.
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But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.
Alito wrote:
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.”
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