Tag archives: gender identity

Bostock and Gender Identity: Gorsuch Cancels Male and Female

by Peter Sprigg

July 2, 2020

In a recent blog post, I noted that virtually all critics of Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County identified his misinterpretation of the word “sex.” The Civil Rights Act of 1964 forbids employment discrimination “because of sex,” and Justice Gorsuch interpreted “sex” to incorporate “sexual orientation” and “gender identity” as well.

I went further and noted that not only is “sexual orientation” not the same as “sex” or merely a part of it, but it is a different type of personal characteristic. Sex is an objective characteristic determined by biology, while “sexual orientation” is a somewhat vague concept that includes a fluid combination of feelings, behaviors, and self-identification.

The same can be said of “gender identity”—it, too, involves a mix of feelings (“gender incongruity” or “gender dysphoria”), behaviors (“gender expression” in the form of clothing, hairstyles, makeup, etc.), and self-identification (being “transgender,” “non-binary,” or “gender fluid,” for example).

However, the “gender identity” portion of Justice Gorsuch’s decision is even more muddled, and has even more radical implications, than the sexual orientation portion.

Bathrooms, Locker Rooms, and Dress Codes

For example, Justice Gorsuch dismisses concerns about “sex-segregated bathrooms, locker rooms, and dress codes,” saying those were not at issue in the Bostock case. Justice Samuel Alito’s dissent, however, declares, “The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible.”

Although the majority opinion is 33 pages long, the heart of its reasoning is found in this simple hypothetical:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a … cause of his discharge.

(The flaw in this, as Alito and others point out, is that the fired employee in this hypothetical situation differs from the retained employee not in only one characteristic, but in two—both his sex and his sexual orientation are different.)

But let’s look at how the exact same analogy would apply to showers and locker rooms—perhaps made available as part of a fitness center provided by a company as a fringe benefit to its employees. Here is Gorsuch’s logic (with only the italicized portion changed from his opinion):

Consider, for example, an employer with two employees, both of whom seek to use a locker room and showers in which the employee may see female employees in the nude and may appear nude in front of female employees. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he looks at female employees nude in the locker room and shower and exposes his own nude body to female employees, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a … cause of his discharge.

This is not some generalized slippery slope argument—this is the precise (indeed, irresistible) logic of Gorsuch’s opinion.

But note something important: this outcome is not dependent on the employee’s “gender identity.” Under the Gorsuch logic, any male employee has the right to observe his female colleagues nude, and to expose his own nude body to them, in the locker room or shower. To limit this privilege only to males who identify as female would be, ironically, to “discriminate” on the basis of “gender identity.”

Lying About Sex

While this is the inescapable logic of Gorsuch’s opinion, he shies away from it in his actual discussion of “gender identity.” Here is the hypothetical he presents with respect to that issue:

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

His previous hypothetical involving sexual orientation was (somewhat) more straightforward—because a “man” (a “male employee”) is treated differently from (what Gorsuch considers to be) a similarly situated “woman” (a “female colleague”), there is (Gorsuch argues) discrimination “because of sex.”

But in the gender identity hypothetical, there is no “man” or “woman,” no “male” or “female” employee at all—only a person “identified as male at birth” and one “identified as female at birth,” each of whom “now identifies as female.”

Earlier in the opinion, Justice Gorsuch had said that “we proceed on the assumption that [the word] “sex” [in 1964] signified … biological distinctions between male and female.” To be consistent with that “assumption,” the first employee in the hypothetical should have been described as “a transgender person who is male but who now identifies as a female.” That language, however, would have been offensive to transgender activists, who insist that self-identification defines what a person really “is.”

If Justice Gorsuch had been consistent (and honest)—referring to “a transgender person who is male but who now identifies as a female”—it would have cast the “discrimination” at issue in a different light. When an employer (such as Harris Funeral Homes, in this case) parts ways with an employee such as Anthony Stephens (because he wanted to identify as female and be known as “Aimee”), it is not because of the employee’s sex, but because the employee is lying about his sex.

#SexNotGender

Justice Gorsuch scrupulously avoided any mention of the LGBT movement and its philosophical assumptions in his opinion, insisting that he was merely applying literally the language of the 1964 Civil Rights Act. However, the inconsistency of his two hypotheticals shows that it is impossible to discuss “gender identity” without addressing fundamental concepts of what is true and what is real.

Outside the Supreme Court on the day of oral arguments, supporters of Harris Funeral Homes in the gender identity case (which included radical feminists from the Women’s Liberation Front, or WoLF) carried signs with the hashtag “#SexNotGender.” This carried two layers of meaning. The most basic relates to the court’s interpretation of the Civil Rights Act—discrimination because of “sex” refers to biological sex, and it does not extend to “gender” (identity). At a more philosophical level, “Sex Not Gender” implies support for the view that the objective, physical reality of one’s biological sex is a more reliable indicator of whether one is “male” or “female” than the subjective, psychological construct of “gender identity.”

Which is more important—“sex” or “gender identity?” This is a genuine debate, and Americans have a right to hold and argue for whichever opinion they believe in. The problem is, it is impossible to be neutral on this point—anyone who uses the categories of “male” or “female” at all must make a choice how to define them. The Bostock opinion chooses “gender identity,” and forces that choice on private employers, even though Congress plainly did not do so.

The Civil Rights Act made it unlawful for an employer to discriminate “because of sex.” The Bostock decision goes much further—essentially making it unlawful for an employer to act on the belief that “sex” is real. A law that was intended to protect the male and female sex is being interpreted to abolish (biological) sex altogether.

The Supreme Court Goes Rogue on Sex Discrimination

by Peter Sprigg , Mary Beth Waddell, J.D.

June 17, 2020

Earlier this week, the Supreme Court re-wrote Title VII of the Civil Rights Act of 1964 by holding that sexual orientation and gender identity are included in the statute. 

The majority opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, claims to be using a textualist approach, yet its analysis and holding prove otherwise.

Justice Samuel Alito concisely opened his dissent with the summary: “There is only one word for what the Court has done today: legislation.” Justice Alito aptly compared this opinion to a pirate ship sailing under a textualist flag.

He went on to state, “Many will applaud today’s decision because they agree on policy grounds…. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not” (emphasis in the original).

Indeed, Justice Kavanaugh’s dissent seems to show sympathy for the policy outcome, yet he agreed that it is not within the Court’s constitutional boundaries to make this change.

Despite its improper analysis of other scenarios, the majority opinion properly makes reference to “an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent.” Yet it does not carry this analysis through in the cases at hand. The proper analysis is whether or not an employer would fire a female employee for homosexuality or identification as the opposite sex, but would not fire a male employee for homosexuality or identification as the opposite sex.

This wrong legal analysis leaves many questions unanswered. In seeming acknowledgement of the policy Pandora’s box it has opened, the majority opinion acknowledges the Religious Freedom Restoration Act and the Ministerial Exception, but only to say that how either would be impacted by the decision is not currently before the court—thus inviting litigation. The Religious Freedom Restoration Act is under attack in Congress, and the scope of the Ministerial Exception is currently under consideration before the Court, so these legal protections for religious freedom  provide little solace.

Justice Alito rightly points out that Congress has repeatedly refused to include sexual orientation or gender identity in Title VII or other federal civil rights statutes. Language to do so is included in the Equality Act and other bills which are introduced year after year without success. Yet, with its decision, the Court has essentially enacted the employment provisions of the Equality Act.

Sexual orientation and gender identity nondiscrimination laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous, or in the U.S. Constitution—unlike race and sex. In many situations, such laws pose a threat to religious liberty, which is protected by the Constitution. Not only that, but these laws pose a threat to women and, even those who identify as homosexual or transgender.

Justice Alito acknowledges numerous areas where the majority opinion could have serious implications:

  • Religious employers could face litigation and be compelled to “employ individuals whose conduct flouts the tenets of the organization’s faith [which] forces the group to communicate an objectionable message.”
  • Transgender identified individuals could be entitled to use the bathroom, locker room, etc. of their choice.
  • Women athletes could be forced to compete against athletes who are biologically male in both scholastic and professional sports.
  • Schools could be prevented from having sex-separated dormitories and housing.
  • Employers could be forced to cover treatments and surgeries that are not deemed medically necessary and, for religious employers, are in opposition to their faith tenets.
  • Freedom of speech, as it relates to both pronoun usage and employees’ ability to express their beliefs about marriage, family, and human sexuality, is now called into question.
  • The standard of review by which courts judge claims related to sexual orientation and gender identity discrimination could be upgraded to a stricter standard of review, like that used for sex discrimination.

Sadly, the Court has yet again usurped congressional power to achieve a desired policy goal which Congress has repeatedly refused to implement, and which is detrimental to society. 

With the Court’s invitation for litigation, the American Civil Liberties Union expects hundreds of cases to be filed.

Now, we wait to see how this will play out in future litigation and how Congress will respond to this judicial assault upon its constitutional prerogatives.

Mary Beth Waddell is Senior Legislative Assistant at Family Research Council. Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council.

Planet Fitness Bans Woman for Protesting Man in Locker Room”

by Rob Schwarzwalder

March 9, 2015

A woman protests that a man is using the women’s locker room and her gym membership is then suspended.  Yes, this really happened.

Planet Fitness is no longer part of the rational universe.  It has excised itself from the constellation of sanity and now exists in alternative realm where all things are malleable.  Mr. Spock, where are you when we need you?

The cosmos has no room for this Planet.  I hope it’s customers launch to other facilities and land safely at other gyms, where the atmosphere will be more conducive to moral sanity.

FRC’s Peter Sprigg Testifies Against Maryland Senate Bill 212

by FRC Media Office

February 4, 2014

Below are the remarks that Peter Sprigg, FRC’s Senior Fellow for Policy Studies, delivered before the Maryland State Senate’s Judicial Proceedings Committee


Testimony in opposition to Senate Bill 212
Peter Sprigg
Senior Fellow for Policy Studies, Family Research Council
Resident, Montgomery County, Maryland

Maryland State Senate, Judicial Proceedings Committee
February 4, 2014

I urge you to oppose Senate Bill 212

This bill caters to anyone who is “transgendered,” a broad umbrella term that includes transsexuals (people who have had sex-change surgery), anyone who has changed or is changing their public “gender identity” (regardless of whether they have had surgery or hormone treatments), transvestites (people who dress as the opposite sex on an occasional basis for emotional or sexual gratification), and drag queens and drag kings (people who dress as the opposite sex for the purpose of entertaining others).

It should be opposed by anyone who believes in freedom of speech, freedom of association, freedom of conscience and religion, and a free market economy. Here are some reasons why:

  • The bill would increase government interference in the free market. It would substitute the judgment of the state for that of the employer regarding what qualities or characteristics are most relevant to a particular job.
  • Gender identity” is unlike most other characteristics protected in civil rights laws. The Civil Rights Act of 1964 bars discrimination based on “race, color, national origin, sex, and religion.” The first four of these are included largely because they are inborn, involuntary and immutable. (Religion, while voluntary, is explicitly protected by the First Amendment to the U.S. Constitution.) Transgender behavior meets none of these criteria.
  • The bill would lead to costly lawsuits against employers. In the case of public employers (which are explicitly covered by the bill), such a law could lead to large settlements being paid at taxpayers’ expense.
  • The bill would undermine the ability of employers to impose reasonable dress and grooming standards. The bill professes to protect such standards. However, it requires that such standards be consistent with the employee’s chosen and variable “gender identity.” This effectively forbids employers from using the most fundamental standard of all—that people be dressed and groomed in a way that is culturally appropriate for their biological sex.
  • The bill would violate the privacy of others. Because transgender status is not dependent on having “sex-change surgery,” SB 212 would allow some biological males (who claim to be female) to appear nude before females (and vice versa) in bathrooms, locker rooms, and showers. (Previous versions of comparable federal legislation included an exemption for “shared shower and dressing facilities in which being seen unclothed is unavoidable.” There is no such exemption in this bill.)
  • The bill would mandate the employment of “transgendered” individuals in inappropriate occupations. For example, under this bill, employers in the area of education and childcare would be denied the right to refuse to hire transgendered individuals, even if they consider such persons to be confusing, disturbing, or inappropriate role models for children and young people.

Please vote “no” on Senate Bill 212.

State of Gender Identity and Sexual Orientation in the States

by Family Research Council

March 14, 2011

Several state non-discrimination statutes include the phrases gender identity/gender expression and sexual orientation as factors in addition to race and sex against which alleged discrimination is prohibited. Other state legislatures have proposed legislation which would add these terms or further broaden them. Many bills would make it illegal to deny employment, housing and even public accommodations such as rest rooms and other traditionally sex-specific spaces to a person based upon what sex they perceive themselves to be any particular day.

The concept of gender identity/gender expression attempts to legitimize a persons wish, perception or belief that he or she is the opposite sex than his or her actual sex at birth. This type of legislation tries to normalize and mainstream transgendered behavior, cross-dressing, etc. Additionally if enacted, those measures that include public accommodations become a public safety concern. This occurs by creating legitimized access sought by predators to women and children in places such as public restrooms and gym locker rooms, where entitlement to privacy has always been recognized.

The map below will give you an idea of the state of gender identity/gender expression and sexual orientation in the states.

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