But it might still be bad enough
Yesterday’s ruling by the United States Supreme Court in Harris v EEOC was nowhere near as bad as it might have been for the future of sex-based human rights in America.
As a result, gender critical voices were largely supportive of the decision, which protects LGBT employment rights.
That aspect of the ruling is long overdue and welcomed by almost everyone except right wing culture warriors.
More to the point, however, the majority opinion does not quite disestablish the sexed basis of Title VII as some advocates had feared the court might do, replacing it with “gender identity.”
Nevertheless, there are pessimists who see the potential for further erosion of sex-based rights in law.
The radical feminist Women’s Liberation Front, which had argued for a more affirming treatment of sex-based rights in the case, was “extremely disappointed” by this aspect of the decision, even though much of it is exactly what they wanted.
To be clear, the Court gets it right when it says that sexual orientation does not, and should not, relate to a person’s employment status or performance, and that discrimination on the basis of sexual orientation constitutes unlawful sex discrimination. But the Court gets it gravely wrong when it conflates sexual orientation and so-called “gender identity.”
Justice Gorsuch defined sex as “status as either male or female as determined by reproductive biology,” affirming the plaintiff’s right to be a gender nonconforming male.
But the language also calls Aimee Stephens female, referring to “her” transgender status.
So while Gorsuch seems to have been aware that “gender identity” is a problematic basis for a protected characteristic, his ruling can — and almost certainly will — be cited in further efforts to enforce pronouns and annihilate sex-based categories in law, whatever his decision actually says.
“Six members of the U.S. Supreme Court think that men can be women,” WoLF writes. “This is a dark day for women and girls in the U.S.”
We are gravely concerned about the impact that this decision almost certainly will have on the application of Title IX, specifically the ability to exclude males from women’s sports and the ability of female athletes to keep men and boys out of our intimate spaces. We are also gravely concerned about what this will mean for the ability of women and girls to keep men out of spaces like prisons and shelters.
As anyone who has studied American Constitutional history knows, there is reason to be pessimistic on this score.
Consider the infamous Citizens United decision, which essentially demolished campaign finance reform in the United States.
It is a direct lineal descendant of an obscure 19th Century decision regarding railroad taxes in California.
By way of some amazing and surreal shenanigans, that decision invoked the anti-slavery Fourteenth Amendment to establish “corporate personhood” in law.
Clever attorneys built upon the precedent over decades, transforming it into a key legal principle that empowers billionaires to shape elections.
To be sure, there are knowledgeable people with less pessimistic outlooks than this, and I am not discounting their views.
For example, law professor W. Burlette Carter, who wrote an amicus brief in the case, offers a narrow interpretation of the effects on Title IX. (You can read her entire thread here.)
They say they are not addressing other statutes. There is another case involving Title IX (intimate spaces in educational institutions) that is coming up. They are hinting that this case does not control that one. That statute has different language.
— W. Burlette Carter (@wddaughter) June 15, 2020
Even if Gorsuch’s opinion refers to the plaintiff as female, the argument goes, he does not enshrine the protection of “gender identity” in the way that gender identitarians would have written it.
However, others foresee a much wider interpretation being possible in the future.
In one scenario, it could be considered discriminatory to recognize the material sex of a person once they “identify” as the opposite sex, depending on future rulings.
Furthermore, concepts like “gender identity” and “transition” and “living as a woman” remain undefined by the court, so they can be interpreted as loosely as future courts want.
Once self-identification effectively becomes law, sex-based rights are effectively finished.
This may be true even though Gorsuch even took pains to make it very clear that his opinion does not disestablish sex-based categories in law.
“The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination,” he writes.
And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.
Which is all fair enough, but you can be absolutely sure that the ACLU and liberal legal allies aim to bring exactly those kids of cases to court. They will not feel the slightest shame in citing Gorsuch to make those claims, either.
Worse, a very different court than this one will probably decide those cases.
Litigation is already under way in Connecticut and Idaho, where the ACLU is leading a weird courthouse crusade to destroy Title IX protections for female sports.
Rather than a single nationwide “transgender status” law as exists in the United Kingdom, there are fifty different state laws, raising innumerable opportunities for a challenge in a federal courtroom.
That process will take years, however. In the meantime, the Supreme Court is a political battleground subject to rapid change, as is the larger federal judiciary.
A President Biden will appoint liberals, including perhaps some acolytes of the new gender orthodoxy, and a Democratic Senate would confirm them.
Due to recent abuses of the SCOTUS confirmation process by Senate Majority Leader Mitch McConnell, there are calls to “pack the court” by expanding the number of justices to, say, 15, thus appointing six liberals to create a near-permanent majority.
Democrats have not committed to such plans. But so far, they have shown zero interest in standing up to the gender lobby to protect anyone or anything, either — not even Title IX sports for women and girls, or women’s prisons, or federal programs for women-owned businesses.
On the other hand, the fact that Neil Gorsuch wrote this opinion — and that Chief Justice John Roberts joined the majority for this decision — shows that there is no simple, partisan choice that can protect sex-based human rights in American law at the ballot box.
Yesterday’s ruling was not a disaster. However, it does mean that advocates must remain vigilant and do the hard work of organizing, lobbying, and litigating against gender self-ID.
Harris v EEOC may or may not end up hurting sex-based rights. It definitely does not go far enough to protect them from further encroachment.
VIDEO: Board members of WoLF discuss the ruling.