by Peter Sprigg
June 24, 2020
Supreme Court Justice Neil Gorsuch has rocked the legal world in a set of three cases consolidated under the name of Bostock v. Clayton County, Georgia by declaring that the Civil Rights Act of 1964 outlawed employment discrimination on the basis of sexual orientation and gender identity.
Gorsuch accepted the argument that the law’s prohibition of discrimination “because of … sex” demands this result, because “homosexuality and transgender status are inextricably bound up with sex.”
However, Justice Alito pointed out in dissent, “‘Sex,’ ‘sexual orientation,’ and ‘gender identity’ are different concepts.” When the Civil Rights Act was adopted, Alito said, “[I]t was as clear as clear could be” that discrimination because of sex “meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth.”
Virtually all the critics of the Bostock decision have cited this problem—that Justice Gorsuch erred in his interpretation of the word “sex” in the Civil Rights Act (or of the entire phrase, “discriminate because of sex.”)
I would go even further. I would argue that Justice Gorsuch fails to understand “sexual orientation” and “gender identity” as well.
Let’s look at the concluding, summary sentence of his opinion:
An employer who fires an individual merely for being gay or transgender defies the law.
My question is not just, “What does ‘sex’ mean?” but, “What does ‘being gay or transgender’ mean?”
The answer is not as obvious as it may seem. As I have been pointing out for years in my writings on human sexuality, neither sexual orientation nor gender identity are unitary concepts. Both, depending on the context, may refer to a person’s feelings, a person’s behavior, a person’s self-identification, or some combination thereof.
In the case of sexual orientation, a person may express romantic or sexual attractions toward persons of the same sex (feelings); a person may engage in sexual acts or sexual relationships with a person or persons of the same sex (behavior); or a person may either think or say publicly, “I’m gay” (self-identification).
While many may assume that all three elements of sexual orientation go hand in hand, it’s abundantly clear from social science research that they are not always consistent with each other in one person. A person with same-sex attractions may choose not to engage in homosexual conduct and may not identify publicly as “gay.” Is it meaningful—or respectful—to insist that such a person really “is” gay? A person may both experience same-sex attractions and engage in homosexual conduct, but may still choose not to identify as “gay.” Or a person might experience same-sex attractions and self-identify as gay, but choose to remain sexually abstinent. It’s also well-known that in unique social contexts—such as prisons—some individuals may engage in homosexual conduct even though they are neither attracted to the same sex nor “gay”-identified.
How many of the three elements must be present to say that someone “is” gay? All three? Two of the three?
In Justice Gorsuch’s opinion, he seems to lean toward attractions (feelings) as the defining characteristic—he speaks of a man who is “attracted to men” being discriminated against “for being homosexual.” (LGBT activists do something similar when say, as shorthand, that people should not be discriminated against for “who they love.”) Ironically, however, the discrimination alleged by the two plaintiffs in the sexual orientation cases reportedly occurred when they publicly identified themselves as gay. Gerald Bostock did so implicitly by joining a gay softball league; and Donald Zarda doing so explicitly in a comment about his sexual orientation to a customer.
Yet, as I have also often pointed out, when people (such as socially conservative Christians) express disapproval of homosexuality, it is virtually always homosexual behavior which is considered most problematic. “Discrimination” because of a person’s feelings alone would be hard to pull off, given that feelings are invisible. It is only when they are manifested overtly in sexual behavior—or in public self-identification which is taken as an indicator of sexual behavior—that “discrimination” is even possible. (I notice that Justice Gorsuch did not hypothesize about disparate treatment of a male employee and a female employee, “both of whom have sex with men.” Perhaps he would have considered it unseemly.)
LGBT activists would argue that discrimination based on any of these grounds—homosexual attractions, behaviors, or self-identification—should be illegal. But remember, the case was about the meaning of discrimination “because of sex” in a 1964 law—not about what LGBT activists wish was the law.
The fact that “sexual orientation” is defined by a shifting and uncertain mix of feelings, behaviors, and self-identification is one more proof that not only is it not the same characteristic as sex, it is not even the same type of characteristic as sex. “Sex” is not defined by feelings, behaviors, or self-identification. It is defined by biology—as Justice Alito said, by “the genetic and anatomical characteristics that men and women have at the time of birth.”
The Civil Rights Act simply does not apply.