Words of Wisdom from SCOTUSBLOG

[This is from Ryan T. Anderson, William E. Simon Senior Research Fellow at The Heritage Foundation. The whole column is here. Recommended reading.] 

Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County claims to apply a simple and straightforward test: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” But he refuses to consider what applying this simple—in reality, simplistic—test actually requires—and not just under Title VII, but under every nondiscrimination law that includes “sex” as a protected category, notably including Title IX. Gorsuch’s argument rests on the logic of sex discrimination. Alas, he got that logic wrong. And had he considered what applying it to other cases would require, he might have been forced to reconsider his misguided theory. This mistaken theory of sex discrimination will have far-reaching negative consequences down the road.

Gorsuch argues that whenever sex is a “but-for” cause of a negative employment decision, sex discrimination has occurred. He writes:

If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer—a statutory violation has occurred.

And Gorsuch offers examples of how this plays out. Here’s one:

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.

Under the Gorsuch test, if changing the plaintiff’s sex would change the outcome, sex discrimination has taken place. Suppose a female lifeguard is fired because she wears a swimsuit bottom but not a top. No doubt, “changing the employee’s sex would have yielded a different choice by the em­ployer.” Yet her termination was not sex discrimination provided that a male lifeguard who exposed private parts would have similarly been fired. That male and female bodies differ—and thus require different swimsuits to prevent exposure—doesn’t amount to discrimination unless one embraces a simplistic theory. And, of course, nothing hinges on whether this lifeguard currently “identifies” as a woman or a man.

Consider another example. Suppose a male employee at a fitness center repeatedly goes into the woman’s locker room and is fired. Now it’s true that “changing the em­ployee’s sex would have yielded a different choice.” But the negative treatment the employee faced was not sex discrimination, provided the employer imposed no double standard for men and women, because each are prevented from entering the opposite sex’s private space.

And yet, with Gorsuch’s opinion, the Supreme Court has embraced a theory of sex discrimination that prevents employers—and schools—from keeping males out of female-only spaces. Either that, or it believes only males with a “transgender status” have the privilege of entering female-only spaces.

Gorsuch’s theory does not test for sex discrimination. In a case of sex discrimination, sex must not only be a “but-for” cause of differential treatment; that differential treatment must also entail disadvantageous terms or conditions to which members of only one sex are subjected. The simplistic test that Gorsuch puts forth looks for the “but-for” cause and “negative” treatment, but it doesn’t link the two: It doesn’t look for disadvantages directed at individuals of only one sex. He’s offered half a theory of sex discrimination.

An approach that looks for sex-based double standards is not only the best reading of the statute; it fits Supreme Court precedent involving Title VII, as I explain in the Harvard Journal of Law and Public Policy. The Supreme Court unanimously held in Oncale v. Sundowner Offshore Services, Inc. that Title VII requires “neither asexuality nor androgyny.” What it requires is equality and neutrality. It forbids double standards for men and women—policies that disfavor at least some individuals of one sex compared with similarly situated members of the other. The court in Oncale quoted Justice Ruth Bader Ginsburg to explain: “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” This reading by Ginsburg, embraced by the unanimous court, was sound—unlike the new theory put forth by Gorsuch. And Gorsuch’s opinion ignores that sound test altogether.

Title VII forbids unfairness because of sex. It excludes not just any sex-conscious standards, but double standards. But Gorsuch’s theory of sex discrimination would rule out any policies that advert to sex, rather than only those sex-related policies that result in “disparate treatment of men and women” (Price Waterhouse v. Hopkins) under which individuals of one sex suffer “disadvantageous terms” that individuals of the other do not (Oncale). Gorsuch’s theory—“if changing the em­ployee’s sex would have yielded a different choice by the em­ployer”—entails asexuality and androgyny.

*** [Read on. The whole column is here. I reprint the conclusion, in part, below]***

So what should we do now? Gorsuch’s opinion more than once seems to invite Congress to exercise its role as a check and balance on the court. It strikes me that there are three paths forward.

First, Congress could clarify that when it uses the word “sex” in civil rights statutes it does not refer to sexual orientation and gender identity.

Second, Congress could provide robust religious liberty protections to ensure that this mistaken theory of sex discrimination does not harm the free exercise of religion.

Third, Congress could state that certain actions and decisions do not constitute “discrimination.” This would protect the ability of institutions to, for example, offer single-sex facilities and programs—think athletics—on the basis of biology rather than identity.

So, too, Congress could clarify that bans on sex discrimination do not require any institution to allow males to compete against females in athletics or use women-only locker-rooms and shelters. It could explicitly say that no physician has to engage in so-called gender-affirming care, and no individual or institution has to act in ways that undermine their conviction that marriage is the union of husband and wife.

Americans disagree about sex. That’s not news. How we manage these disagreements will be.