I believe firmly that everything important can be said, not in three words, as Wittgenstein maintained, but in 1000 or less. Therefore, I wish in today’s column to explain the reasoning in the Supreme Court’s recent decision [1] in Bostock, and what is principally wrong with it.
It is important to criticize the Court’s reasoning, because, in a misguided high-mindedness, it holds that any lamenting of the practical consequences of its decision belongs to the realm of policy rather than to what the law says.
The Court holds that, as a matter of undeniable, logical consequence, to discriminate in employment because of someone’s homosexual orientation or transgender status is to discriminate because of sex, and thereby violates Title VII of the 1964 Civil Rights Act.
It does not hold this, as some commentators have said, because it redefines “sex” to include homosexual orientation or gender. Rather, the Court says explicitly that it intends to adhere to the understanding of sex from 1964, as someone’s biological constitution directed toward procreation.
Rather, the Court reasons in the following way. To discriminate on the basis of something is for it to make a difference in judgment, when one is confronted with two otherwise identical fact-patterns. Consider these two fact-patterns:
Smith is white, Smith receives a “fair” performance evaluation
Smith is black, Smith receives a “fair” performance evaluation
It seems uncontroversial that if one would fire or dock Smith in the second case but not the first, then one has made a discrimination based on race, as the difference in race is the sole difference between them.
But now consider these fact-patterns:
Smith is female, Smith is attracted to males
Smith is male, Smith is attracted to males
And also these:
Smith is female, Smith dresses and acts the way females do
Smith is male, Smith dresses and acts the way females do
By a parity reasoning with the uncontroversial case, apparently, someone who would fire or dock Smith in the second fact-pattern in these examples, but not the first, would be making discriminations on the basis of sex. Note that “sex” here is the plain biological difference between male and female.
The reasoning is on its surface nifty. One should also say, in passing, that the opinion is written with an exceptional clarity, verve, and an obvious intent to persuade. No wonder the Court held confidently that discrimination on these new grounds was straightforwardly contrary to Title VII, by immediate logical consequence.
So what is wrong with it? Many things. Some have pointed out [2], correctly, that this fact-pattern test does not capture what was meant by “discrimination because of” in 1964. One need only consult the speeches of civil rights leaders of the time, and precedent civil rights legislation at the state level, to see that the phrase meant, in particular, “invidious discrimination” or “prejudice” – a disposition to favor one race over another, or one sex over another, so as to deny the other race or sex fair equality of opportunity.
But employment decisions that advert to sexual orientation or transgender status do nothing of the sort.
Actually, Title VII implies that employers will advert to sex or race, not ignore it, because the law aims to foster equality and cooperation among the races and sexes, not annihilate the differences.
Imagine a firm of segregationist white lawyers in 1965 that did not want to hire a black attorney. They figure they can avoid hiring the talented black applicant, and any liability under the law, by telling an equally talented white applicant to say he is black and show up for the job interview in blackface and wig. Imagine, if they had used, in their defense of hiring the white candidate, the logic of Bostock: “Well, we certainly couldn’t favor the black applicant over the blackface applicant, as that would be to discriminate on the basis of race!”
Similarly, under Bostock, to favor a woman over a biological man pretending to be a woman would be discrimination based on sex – an outcome, by the way, which will lead to greater divisiveness in our society, not the harmony that Title VII contemplated.
But more damning is that the fact-pattern test does not even work as the Bostock Court wishes. One obviously cannot complete it as required for transgenderism:
Smith is female, Smith has female secondary sexual characteristics
Smith is male, Smith undergoes hormone treatment and plastic surgery to mimic female secondary sexual characteristic
The cases are not “identical except for a difference in biological sex.” The Court itself, when it says it will apply the test, does not even do so:
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.
Now throw these assertions into fact-patterns:
Smith was identified as female at birth, Smith now identifies as a female
Smith was identified as male at birth, Smith now identifies as a female
Clearly, Title VII is on any standard irrelevant to this difference in judgment, since the varying fact on the left side is not “Smith is male” versus “Smith female,” as required. The Court botched its own presentation of its case!
It’s too much to expect this Court to be logical. But it follows logically that an employer who had the policy of, simply, not hiring persons who identify differently from how they were identified, would not be in violation of Title VII – since, by the Court’s own language, the requisite fact-pattern test does not apply.
One can find several other serious gaffes in the reasoning of the Court in Bostock. But Christians who reject these botched arguments are allegedly motivated by irrational animus!
*Image: Mona Lisa (La Gioconda) [3] by Leonardo da Vinci, c. 1506 [Musée du Louvre, Paris]