Feb. 13, 2019
In a significant ruling last week, a three-judge panel of the U.S. Court of Appeals for Fifth Circuit ruled against a male-to-female transgender person, Nicole C. Wittmer, who had sued the Phillips 66 Company for employment discrimination. Wittmer contended that Phillips 66 had withdrawn a job offer after learning that Wittmer identifies as transgender. (Hat tip to Ed Whelan for his excellent two-part post on the case at National Review, here and here.)
Federal law does not prohibit employment discrimination on the basis of “gender identity.” After years of failing to persuade Congress to add “gender identity” (or “sexual orientation”) as a protected category in federal civil rights laws, LGBT activists have adopted a new legal strategy. They now contend that discrimination based on gender identity is already illegal because it is a form of discrimination based on “sex,” which was prohibited along with racial discrimination by Title VII of the Civil Rights Act of 1964.
Specific lawsuits rest not only on such abstract legal theories, but also on specific facts. In this case, both the District Court and the Fifth Circuit decided for Phillips 66, the defendant. The evidence showed that the plaintiff Wittmer had been fired by his previous employer, a fact which Wittmer did not disclose to Phillips 66. It was the discovery of that deception that led the company to withdraw a job offer—not transgender discrimination.
Therefore, it was actually not necessary for the court to decide whether sex discrimination encompasses “gender identity.” However, on this threshold question, the District Court had said yes. Judge James C. Ho wrote a separate concurrence to explain why Title VII does not cover either gender identity (at issue in this case) or sexual orientation. At 14 pages, his concurrence is actually twice as long as the majority opinion (which Ho also wrote).
I highly recommend this concurrence. Judge Ho does a good job of explaining two different theories of interpretation of sex discrimination. Under the “favoritism” theory, an act is only “sex discrimination” if it favors one sex over the other. Under the “blindness theory” (relied on by the plaintiff), an act is “sex discrimination” if it takes sex into account in any way at all (in this case, because women may wear dresses to work but men may not, for example).
Judge Ho points out very bluntly that under the “blindness theory,” it would not be permissible to have “separate bathrooms and changing rooms for men and women.” And an attorney for the National Center for Lesbian Rights, permitted to participate as a “friend of the court,” conceded this point at oral argument (see p. 16 of the opinion).
This is significant. Up to now in the bathroom debates, transgender activists have conceded the legitimacy of separate men’s and women’s facilities, but have argued that people should be allowed to use the one that corresponds to their gender identity rather than their biological sex. But now we have a concession that a logical implication of the argument they are using for counting “gender identity” discrimination as a form of “sex discrimination” is that we could not have separate facilities at all.
Courts should not be rewriting laws just because LGBT activists have not persuaded Congress to do so. But if they adopt the approach transgender activists want, they may not only usurp the powers of Congress—they may abolish separate men’s and women’s locker rooms, showers, and restrooms altogether.
So much for the “right to privacy.”