Bostock v. Clayton County: One Innocent’s Excursion into Sex v. Gender

By Lambert Strether of Corrente.

I’m going to try to keep this post as simple as I possibly can. The other day, I took notice of the following “letter” from the Department of Justice, which contained the following passage:

“The Equal Protection Clause requires heightened scrutiny of laws that discriminate on the basis of sex4 and prohibits such discrimination absent an “exceedingly persuasive” justification. Because a government cannot discriminate against a person for being transgender ‘without discriminating against that individual based on sex,’6 state laws or policies that discriminate against transgender people must be ‘substantially related to a sufficiently important governmental interest.'”…

6 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741 (2020).”

I wanted to understand the Court’s reasoning, and so I went and found Bostock. As a caveat, I have, at this point, reverted to being a babe in the woods with respect to the current discourse. My views and my priors were formed in the late 70s and early 80s by a number of Ivy League-adjacent feminists and gay liberationists; if the concept of gender fluidity, or today’s alphabet soup (LGBTQI+) existed back then, they did so in circles far too advanced for me. (I should say that, after the divorces sorted themselves out, the effects of both these movements seem to me to be good.) “Identity” had not then assumed its current prominence either. Oh, and one more caveat: I Am Not A Lawyer. There’s an enormous body of jurisprudence on The Equal Protection Clause, and I feel like I’m juggling power tools. Please be kind when correction is needed!

First, I will quickly move through Bostock. Then, I will look at a key missing piece in Bostock: the concept of self-identification (which the Court did not, and could not have, considered). I will conclude with a no doubt naive suggestion on scrutiny if self-identification (“identified as”) is to be the test.

And so to Bostock (here is the decision). The first thing to note is that it was authored by one of Trump’s judges: Neil Gorsuch. It seems odd that a “progressive” opinion was crafted by one such, but it’s certainly possible. The decision turns on whether “gender” is, as it were, in the penumbra of “sex.” Gorsuch concludes that it is. Please forgive the lengthy extract (citations are omitted):

Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status. While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex.

The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

I don’t think Kavanaugh, in dissent, finds Gorsuch’s putatively textualist transformation of “sex” into “sex and/or gender” amusing, but I certainly do. Who would have thought a textualist could be so nimble? More:

[W]e proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.

This is important: There’s no suggestion in Bostock that sex and gender are in any way synonymous.

[T]he statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ‘ is ‘by reason of ‘ or ‘on account of.'” …. In the language of law, this means that Title VII’s “because of ” test incorporates the “‘simple'” and “traditional” standard of but-for causation. Nassar, 570 U. S., at 346, 360. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. See Gross, 557 U. S., at 176. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.

(Here is a more material on the “but for” test, which may not be as cut-and-dried as Gorsuch says.)

From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. 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 but-for cause of his discharge. 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.

Also important: Bostock is about employment discrimination in the workplace. It is not about other venues with other social relations (schools, sporting events, medical facilities, churches, etc.). That doesn’t mean that Bostock as a precedent won’t be expanded, but that’s what it says now. Here is Kavanaugh’s dissent. He begins by accusing the majority of making new law:

To end-run the bedrock separation-of-powers principle that courts may not unilaterally rewrite statutes, the plaintiffs here (and, recently, two Courts of Appeals) have advanced a novel and creative argument. They contend that discrimination “because of sexual orientation” and discrimination “because of sex” are actually not separate categories of discrimination after all. Instead, the theory goes, discrimination because of sexual orientation always qualifies as discrimination because of sex: When a gay man is fired because he is gay, he is fired because he is attracted to men, even though a similarly situated woman would not be fired just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex. Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination, and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—and actually has done so since 1964, unbeknownst to everyone.

(If discrimination “because of sexual orientation” “automatically qualifies” as discrimination “because of sex”, does that imply that gender and sex are the same, even though Gorush says they are distinct?) And Kavanaugh gives a counter-example:

Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of the other—as the majority opinion does—misapprehends common language, human psychology, and real life.

To my simple mind, Bostock is unlikely to be reversed, and gives a happy result, no matter the reasoning. I mean, surely we can’t be firing employees because they’re gay or trans?

Let us now turn to a question Bostock’s majority does not address: Taking as a given that sex and gender are not the same, how exactly is gender to be determined? It’s worth noting that although the majority in Bostock clearly conceptualizes “sex” as biological sex, nowhere is gender defined, and the relation between sex and gender is not specified. Gorsuch writes of “persons identified at birth as women who later identify as male,” but the concept of “identity as” is treated as entirely unproblematic. In the absence of guidance from the Court, I will assume that “identify as” as self-identification as defined by the American Psychological Association:

n. the act of construing one’s identity in particular terms, usually as a member of a particular group or category (e.g., “I am Hispanic,” “I am a lesbian,” “I am a father”) or as a person with particular traits or attributes (e.g., “I am intelligent,” “I am unlucky,” “I am fat”).

The issue here is that “identify as” falls apart when subjected to the slightest examination. In 2015 (!), Adolph Reed wrote — and I can’t imagine why he hasn’t been cancelled for this — in “From Jenner to Dolezal: One Trans Good, the Other Not So Much.” For those who don’t remember the controversy:

By far the most intellectually and politically interesting thing about the recent “expose” of Spokane, WA, NAACP activist Rachel Dolezal’s racial status is the conundrum it has posed for racial identitarians who are also committed to defense of transgender identity. The comparisons between Dolezal and Republican Jenner (I’ve decided to opt for that referent because it is an identity continuous between “Bruce” and “Caitlyn” and is moreover the one most meaningful to me) began almost instantly, particularly as a flood of mass-mediated Racial Voices who support the legitimacy of transgender identity objected strenuously to suggestions that Dolezal’s representation, and apparent perception, of herself as black is similar to Bruce Jenner’s perception of himself as actually Caitlyn. Their contention is that one kind of claim to an identity at odds with culturally constructed understandings of the identity appropriate to one’s biology is okay but that the other is not – that it’s OK to feel like a woman when you don’t have the body of a woman and to act like (and even get yourself the body of) a woman but that it’s wrong to feel like a black person when you’re actually white and that acting like you’re black and doing your best to get yourself the body of a black person is just lying.

Shorter: If Jenner can self-identify as a woman, why can’t Dolezal self-identify as Black? The answer, suggests Reed, has nothing to do with identity, and everything to do with institutional imperatives within the various NGOs “doing the work,” as we say:

This perspective may help explain why, the more aggressively and openly capitalist class power destroys and marketizes every shred of social protection working people of all races, genders, and sexual orientations have fought for and won over the last century, the louder and more insistent are the demands from the identitarian left that we focus our attention on statistical disparities and episodic outrages that “prove” that the crucial injustices in the society should be understood in the language of ascriptive identity. The Dolezal/Jenner contretemps stoked the protectionist reflexes of identitarian spokesperson guilds because it troubles current jurisdictional boundaries.

To give an example Reed does not, suppose I deeply and sincerely, deep down in my soul, “identify as” rich. Why then cannot I buy a yacht? Obviously, because material realities need to be taken into account, not merely my precious feelings. And “material realities” — for example, sex — bring me to my final point.

Assuming — as Gorsuch seems to — that gender is determined by self-identification (“I am a man because I say I’m a man”), what sort of scrutiny should be applied in cases outside the scope of employment law? After all, employment is really a pretty simple matter: You do the work, you collect a check. You may have deep feelings about your work — and what you do with the check — but your feelings are abstracted away by the employer/employee relationship. So, from that perspective, gender presentation is simply not relevant beyond the question of avoiding “discrimination.”

But what about other contexts? Here is where — it seems to me — a critique of self-identification has some weight, even if it does come from the conservative side of the house[2]. For example, in school: If a person self-identified as a woman is, in biological reality, possessed of male genitalia, I am 100% certain I would not want them in my daughter’s locker room, and I don’t think I have to buy into the whole discourse of parents’ rights to believe that. Call me puritanical, but some things should be private, and the genitalia of the opposite sex are one of them. If a person self-identified as a woman has, in biological reality, acquired through medical treatments the greater upper body strength that a male typically has, I would feel it extremely unfair if their strength allowed them to, for example, deprive my own daughter of an athletic scholarship (and I’m old enough to remember when sports for women was considered great progress, as indeed it was).[1]

So I am proposing a “bumping uglies” test for scrutiny: The more salient biological reality is for any given context, the stricter the scrutiny should be for self-identification. Too innocent?


[1] I also feel that if the Republicans can manage to calm down — a dubious proposition — these two cases are a winning proposition for them in 2024, which liberal Democrats might wish to consider. “They’re coming for your children!” is, after all, a potent message. People care a lot more about their children than they do about the workplace.

[2] But not entirely. From the Communist Party (of the UK):

The Scottish GRR Bill allows anyone over the age of 16 access to a [Gender Recognition Certificate (GRC)], with no medical requirement. Anyone is eligible who self-identifies into an ‘acquired gender’ and can provide fairly minimal evidence of living in this for at least three months is eligible. Sex offenders and those charged with sexual offences can apply, MSPs having voted down amendments to exclude them. The implications of self-ID as the sole requirement for access to single-sex spaces and facilities are serious when it comes to safeguarding women and children from predatory and abusive behaviour by men who can simply declare themselves to be women.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. Kilgore Trout

    Thank you for this, it’s somewhat heartening to know that others feel as confused and torn over the sex vs gender issue. The issue was brought home to me recently when there was a sizeable turnout in support of a “drag queen story hour” at a local coffee house, while I’m still waiting for the first demonstration/protest against US actions in provoking and supporting the war in Ukraine.

  2. tevhatch

    The Special Olympics always got on my nerves, because like horse racing they handicap the performance of athletes, with formulas that could never be “fair” other than they might be applied with less bias than say judgements in gymnastics or ice skating. Now we get onion skin levels of analysis that leaves nothing but tears. What really gets me though is how all of this search for fairness skips so blithely over the issue of class and economic barriers, and that’s probably an important function of this mess, to keep all eyes where they should be, according to our “betters”. I’m glad I’m too old to have to worry about being correct on this.

  3. Zeus

    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.

    That got me thinking. Is the court really saying here that an employer could fire all employees who are attracted to men, as long as they apply the policy to men and women, and therefore not be discriminating against women. That’s what the logic says to me.

  4. Tim

    The information age is dragging everything out of the shadows and forcing society to come to consensus.

    Like every cultural moor, we will get there eventually. Right now it’s those screaming loudest that are winning, not because they are logically correct.

    Ultimately, Women’s sports will become a protected class of sports with willing participation limited to those meeting physical and age determined objective traits. The only other class of sports will be the open class that includes everybody else, (except for the special olympics)

    A primary element to take head-on in these case by case issues, is the perceived conflict of interests that arise when your identity becomes a choice. Said another way, your decision of your identity cannot entitle you to unfair benefits, lest nobody believe you, and certainly nothing should be allowed that causes harm to others.

    For example every boy would love to go into the girls locker room while they are dressing and not get in trouble. But only a boy identifying as a female can actually do it. Any boy that hates to lose at sports could want to always compete against those they can beat, but only a male identifying as a female can actually do that.

    As in business, even the appearance of a conflict of interest is unacceptable and is not allowed. Those deciding on an alternate identity should not expect anything else.

    1. Lambert Strether Post author

      > As in business, even the appearance of a conflict of interest is unacceptable and is not allowed. Those deciding on an alternate identity should not expect anything else.

      A second interesting scrutiny. I suppose one might, in and only in the sports case, take the view that “gender affirming care” was equivalent to doping (as, for example, the East German woman athletes. That was, of course, state-sponsored….).

  5. Dida

    suppose I deeply and sincerely, deep down in my soul, “identify as” rich. Why then cannot I buy a yacht?

    Actually, in one show Dave Chappelle declared to general hilarity that he has decided to self-identify as a white rich person. Of course if self-identification would work so smoothly, an unemployed black man could self-identify as a white person in an encounter with the police, and then nobody would end up with a bullet in his back. We could also self-identify as any sort of creature we want – if you belong to the Harry Potter crowd you could self-identify as a goblin. But it doesn’t work like this, because self-identification needs social validation, otherwise it doesn’t count in the social arena. And you’ll end up socially ostracized or in the loony bin. Ultimately it is society who decides which claims on reality it will accept.

    More exactly, the group that has the power to make laws, let’s call them the ‘deciding classes’, they are the ones with the actual power to reshape social reality. They are the ones who made the one-drop rule, they are the ones who defined native status, they are the ones now attempting to redefine the nature of women and men.

    The key question is why would the Democratic elites support and enforce transgender rights with such relentless determination, when they care so little about the human rights of anybody else that they cannot even be bothered to track police killings. It seems extremely plausible to me that transgender policies are driven to a great extent by Big Pharma (and Big Biomed), a core donor group of the Democrats.

    The wet dream of Big Pharma would be to have the law force insurance companies to cover sex-reassignment and post-transition care as a human right. In the first five years, health care for transgender people costs on average $40,000 per year, then costs drop to ca $7000-10,000 per year; that adds up to half a million per 40 years of life. And an American who transitions very early in life would be worth well over half a million dollars to the industry.

    Are ruling elites this cynical and sociopathic? I personally believe at this point that American elites of any stripe have no conscience whatsoever, but you be the judge of that.

  6. OwlishSprite

    What I am missing here is what I have seen as the penalizing of people who refuse to pretend and betray their own truth. LGB define themselves by sexual attraction, same sex and bi. The abuse occurs when a trans woman who says they are Lesbian gets onto a Lesbian dating site and expects female Lesbians to bend their minds to date what to them is a man. There has been a very vicious ‘cotton ceiling’ complaint among trans women that Lesbians are being transphobic when they won’t date them. There is no problem with believing you are a different sex until you have to start forcing people to go against their own lifestyle in order to support your belief in your gender. Lesbians in the UK (some of whom have been sexually assaulted by men) have said they ‘go underground’ because of the threats from trans women who call themselves Lesbians. I don’t know what they are doing in the U.S., there is not as much talk about it on twitter. How and when it became mandatory for biological women to become a subset gender I don’t know. This is a major reason the LGBs are trying to shed the TQs. Fred Sargeant’s twitter account is insightfully adamant about this.

    About the GRR, Nicola Sturgeon pretty much lost her job over this issue, and the ramifications to women in prisons and shelters for abused women. The new FM is trying to continue Sturgeon’s agenda but now there is a firm organized resistance in JK Rowling, et al.

      1. lambert strether

        Thanks for the Suzanne Moore introduction. Here is the Guardian column that caused such a scandal.

        Does make you wonder how many SBF equivalents there are. More, possibly, than one might think.

  7. KD

    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.

    This is the interesting sleight of hand. The original view was that the discriminator was discriminating against the person because of the biological sex of the discriminatee. For example, not admitting women to medical school because they were biologically women. The discriminator’s motivation might be because a woman entering medical school would just end up married and raising kids and not actually practicing medicine so it should got to some poor man who would actually end up practicing (I think this was a common line of thought in decades past) but the motivation did not matter. In fact, they could simply hate women and not want them in medical schools, it would not affect the discriminatory act.

    The interesting thing is that if we consider the motivation of the discriminatee, let’s say the woman really is just going to medical school in hopes of marrying a doctor and has no serious interest in being a doctor. Is it really discrimination to exclude the woman? She is not actually the equal of the male candidate who is serious about being a doctor, and giving her a slot actually would reduce the number of actually practicing doctors in a way that would harm the public. I raise this because this is absolutely not a line of thought that the judiciary are going to permit, because this would open the door to scrutinizing the seriousness of female candidates to professional schools, and that is going to be perceived as insulting, degrading, and basically undermining the intent of the laws. No one is going to examine the motives of the discriminatee in a vanilla sex discrimination case.

    I point this out because Gorsuch is really committing a deeply unnatural act of jurisprudence with this ascribed psychology to the discriminatee to determine if discrimination occurred. Firing a man because they are homosexual is firing them based on a behavior. Now I supposed it could be sex discrimination if you only fired male homosexuals but not lesbians, but to go where Gorsuch goes, you have to take it one step down the chain–the homosexual with the behavior is purportedly motivated by same sex attraction (which is an interesting assumption because it is not impossible that some straight men engage in homosexual acts not out of desire but perhaps for money, drugs, or other quid pro quos). On the woman’s side in this example, the woman might be living out some nominally straight life for reasons having nothing to do with sexual desire (desire for children, economic security, friendship, status), while having no sexual interest in men. So you are not firing them based on a behavior, you are firing them based on an ascribed psychological motivation, and based on this ascribed motivation, you derive the sex differential, making it discrimination (which is taboo in any other context). Of course, on this rationale, presumably you could fire a homosexual if they were straight but engaging in same sex acts for money or because they were being blackmailed or all kinds of reasons–because it is not objection to the behavior that constitutes the discrimination, it becomes discrimination because you are discriminating against the ascribed same sex attraction.

    I would say this is why it is dodgy–people’s actual motivations for behaviors are complex and span the gamut, so trying to make some universal legal rationale based on imputing some kind of universalized psychological motivation to people is both contrived and inconsistent with the real world, but consistent with jurisprudence: determine the outcome you want to achieve and then make up the best-sounding rationale you can to justify it as some natural extension of existing precedent.

    1. Lambert Strether Post author

      “With his venom irresistible and bittersweet that loosener of limbs, Love reptile-like strikes me down.” –Sappho

      I speak from a distance on this, of course, but current mores seem oddly contractual, indeed legalistic, and focus far too much on intent (assuming such a thing to be discoverable, humans not necessarily a species notable for great insight). Where intent is much like “choice” in the marketplace. A model where sex and gender are both gifts, or afflictions, from the Gods, seems quite justifiable to me.

      I think it’s only humane to keep love’s reptile under restraint — the biological binary is, after all, a product of adaptive, sub-personal behaviors that have had the consequence of enabling the various species that possess it to reproduce over the millennia — but that, to me, does not at all equate to “letting one’s children be who they are” (at the age of six or eight, ffs. What an incredible burden to place on a child).

      1. KD

        If you look at the traditional civil rights categories, sex, race, nationality, these basically immutable characteristics from birth. The exception, religion, is more flexible, but there are obviously traditions like Orthodox Judaism which defines membership based on descent from the maternal line.

        There was a shift in about the early 20th century from focus on behaviors (sodomy) to orientation, so-called sexual orientation. However, as we see today, there are no stable patterns of sexual orientation as you can see from surveys. I tend to view humans as relatively more flexible on sexual matters than the current US paradigm, and “sexual orientation” much more mutable than people let on, and I suspect that possessing a clear and unchanging “sexual orientation” is the exception rather than the rule. However, it is clear that the conceptual apparatus of “sexual orientation” was used to try and equate sexual orientation with categories like race/nationality/sex.

        The problem with “gender” and “gender identity” is that it does not appear to be stable at all. Every day a new gender identity gets invented, and people change their identity, so functionally it has no similarity to other protected categories, and appears to be very much driven by personal choice.

        What I take from you analysis is that you find the rationale of Bostock to be b.s. while liking the outcome. I would simply point out that Congress can pass a law protecting against discrimination against gays or trans people just as easily as judges can go through some contorted analysis to “discover” some esoteric protections in the 1964 Civil Rights Act, and certainly the legislative intent discloses no evidence of any intent by Congress at the time to protect so-called sexual minorities.

        My comments are not addressing the pros or the cons of outcome of Bostock, they are directed at the contrived rationale.

    2. Cetra Ess

      I don’t know about US law but in other countries human rights laws *need* to weigh the preponderance of evidence (as opposed to meeting burden of proof) because the nature of employer discrimination is such that it’s mostly impossible to prove otherwise because the employer essentially holds all the evidence.

      If we raised the burden of proof to the level of criminal proceedings then employer discrimination would never be proven, yet we all know it exists.

      So human rights procedings usually come down to analyzing employer statements and actions to discern the likelihood and probability that they were discriminating on the basis of a protected ground and this necessarily involves considering the employer’s beliefs and motivations. It’s unavoidable, the alternative is that that there’s no such thing as employer discrimination as it can’t be proven otherwise.

      So I’m not sure I would agree that this would be unacceptable to the judiciary, at least not for non-US countries.

  8. KD

    If Jenner can self-identify as a woman, why can’t Dolezal self-identify as Black?

    Because feminists score too high on agreeableness for their own good? In addition, if people were permitted to get the benefits of oppressed racial identities in terms of employment and college admissions by claiming to be in that category, it would rapidly dilute the brand into nothing. In Brazil they have a complex set of categories based on skin tone I am told in order to enforce affirmative action against cheaters.

    1. tevhatch

      In Brazil they have a complex set of categories based on skin tone since near the beginning of the European conquest, it’s called divide and conquer.

        1. KD

          You can’t set up a club and grant members special legal privileges, and then let anyone join. This is not an ontological comment on whether race “exists” (whatever that is supposed to mean), but affirmative action laws and policies essentially establish a form of privilege club based on racial identification, and will only work when you have clear boundaries limiting who can be a member. Cheating historically has not been that common in America because there was less racial mixing than Brazil, but if affirmative action continues going forward, eventual there will be similar boards.

          1. Paleobotanist

            It also gets ridiculous when kids have different races or castas than their parents. A dark skinned mixed parent can produce a very light skinned child or two different full siblings can be considered as belonging to different races….

        2. tevhatch

          Further to KD’s reply:

          I can’t recall the title/author now, but I do remember reading in my youth that there were 8 degrees of skin/hair and associated class membership. It was useful information which I would confirmed to myself to still be of cultural/economic “value” when I worked on a contract in Brazil in the mid 1980s. More “modern” classification/classifications had also arrived with the Japanese immigration on one’s degree of white/asian/black mixing, and these were informal and often the subject of debate/gossip, and often direct inquiry to myself. 40 years is a long time, so I can’t say how much has changed.

          Hybridization (vs. the American/Nazi one-drop) would seem alien to Americans (and maybe Modern British, but not to their ancestors). There was a less evolved system in Louisiana, in part due to the French culture, but mostly due to the roaring trade between New Orleans slave markets and Brazil.

    2. Randall Flagg

      Here’s some self identifying…


      Probably adds nothing to this discussion but this gave me a chuckle when I heard it being discussed on a radio show on this gender identity stuff and checked it out
      I don’t think I will ever be able to understand all of this but hey, you’re never going to see me hanging out a Mensa meeting anyway

  9. David in Friday Harbor

    Some of the most insidious discrimination in our society is based on age. Folks continually lie about their age in order to avail themselves of jobs and opportunities. How is this any different than self-representing one’s sex/gender (please, they’re synonymous), one’s race/ethnicity, or any other biological trait determined at birth?

    However, I posit that these self-declared transgressions from biological reality have become of critical importance in America and the UK because the class power relations in these societies are now determined by caste — and caste has no discernible basis in human biology.

    A caste-based society with no formal religious or cultural basis for defining caste membership other than SAT scores, Ivy admission, or bank balance must soon become unmoored from biological reality. Our brahmins must now argue amongst themselves as if they’re playing out a Monte Python sketch.

      1. JBird4049

        >>>sex and gender are not synonyms!

        They well defined in social anthropology especially as studying it exposes people to just how varied humans and their societies are. You must have clearly defined terms or else not be to describe, understand, and communicate what they are. There is a strong incentive to be clear and precise.

        There are no incentives in some social circles today especially among the elites of the academe, the intellectuals, the glitterati, and professional civil rights activists. Confusion brings opportunities.

      2. Dandelion

        Many laws and policies have been written using the word gender as a stand-in for sex. Change the meaning of gender from a synonym and the meaning of these laws and policies change. Ditto changing the definition of “woman” such that it no longer references sex but something more amorphous.

        These are the arguments made by places like the YMCA, for instance, wrt women’s locker rooms: they are now using the more “inclusive” definition of “women’s.” Through this route of changing policy by changing definition they never have to wrestle with policy change itself or explicitly state that the locker room now admits both females and males.

        Now expand that to multi-bed hospital wards, shared psych rooms, women’s rape counseling group therapy sessions and centers, domestic violence shelters, homeless shelters, shared nursing home rooms, and prisons. In all of these places women are already being made to share with males, to the real detriment of females, simply because admins are using the new inclusive definition definition of the word “women.”

        It’s a radical roll-back of rights and remedies women sought for over 200 years, all done via semantic sleight of hand.

      3. David in Friday Harbor

        I Am a Lawyer. The law only began to change in the past five years from the accepted recognition of sex and gender as synonyms.

        As I understand recent changes they do not negate the traditional legal definition of sex and gender as synonymous; rather they reflect a political decision to accept that some persons do not want their lives to be defined by their biological sex at birth, for whatever reason, and to allow them to use a declared gender on certain legal documents.

        I have known people who wish to represent their gender differently than their sex, but I also have known intimately others who in fact wish to change their sex along with their gender. I have learned that there are plenty of medical practitioners to be found offering chemical compounds and surgeries purporting to do just this.

        I leave whether they were successful to others more “woke” than I, someone who just turned 40 — except when I can get the Senior Discount…

    1. plurabelle

      Look up Stefonknee Wolscht and all the fawning articles about this middle-aged man who identifies as a six-year-old girl. He is also a prominent trans activist in Canada (along with Jonathan/Jessica Yaniv, a man with a history of child grooming online who took marginalised immigrant beauticians to court for refusing to wax his balls, and Morgane Oger, small-time politician whose greatest achievement has been getting the Vancouver Rape Relief Shelter defunded after years of campaigning against this exclusionary, transphobic institution that refuses to admit males). The articles about Wolscht dutifully use the pronoun “she” and make it seem like his desire to dress up as a six-year-old girl is some harmless psychological coping mechanism than the fetish it so obviously is. The conservative trans YouTuber Rose of Dawn has detailed videos on this character.

      Then look up the trans-abled community (old article but you can imagine it has only gotten worse since then). There is also a fetishistic component to this (as well as identity disturbance, Body Integrity Identity Disorder very similar to what was recently called Gender Identity Disorder), and a significant overlap between transgender and transabled-identifying groups. Academics in “transgender studies” are calling for the destigmatisation and recognition of transability, as if this is such an obviously “progressive” move!

      (Both race and caste are based on ancestry, which is biological, genetic, something unchosen and that one cannot opt out of. They are not biological in the same way that femaleness is biological, of course. Radical feminists like Janice Raymond, whose 1979 book The Transsexual Empire is as timely as ever, define women as “the female sex caste” for what it is worth, because the basis for gender oppression – sex – is fixed and immutable, unlike economic class which permits some degree of vertical movement up and down.)

  10. Steve M

    So if the group doesn’t mind me chiming in with some absurd nitty gritty to see whether it lightens things up if it doesn’t enlighten.

    Someone correct me if I’m wrong but sex can be identified by a third party. Your doctor for instance when you drop your drawers if you wear ’em.
    Transgender is self identified.
    Sexual orientation is self identified.
    Orientation has a corresponding activity based on the identity of sex.
    If you tell me that you’re gay or heterosexual, the only absolute proof is to engage or witness the corresponding physical activity involving you.
    Someone can vouch for your identity but that’s true for any and all. I know because they told me.
    So can someone tell me if there is a specific physical activity corresponding to transgender identity?

    I don’t know any transgender people. I wonder how true that is compared to the amount of society talking about it?

    So to take it out of the ivory tower and onto the streets for the yucks, what I would ask Kavanaugh about the two people I have to fire is;
    If I seek to retain employees based on whom I can best fantasize about or better, and I fire the two that are married for that reason, on what is my animosity based?

    Having reported on the streets of Chicago, the first thing someone, say a cop, will ask you when meeting you in a situation that has potential for suspicion or confrontation is;
    Whattaya doin’ here?

    So I’ve learned that it’s more important to have an answer for that one first.
    You break out IDs later.

    1. OwlishSprite

      “Whattaya doin’ here?”

      LOL. I’m from Chicago also. ‘Going to motivation’ is the least favorite activity of people with a rich fantasy life.

    2. DonCoyote

      I was trying for concise, but can’t suppress some rambling…

      “Congenital Agenesis of Gender Ideation” is a sci-fi story from 1998 by Raphael Carter (and I would have posted a link to the story if I could have found one–I read it originally in the Starlight 2 collection in 1998). It’s written as if it were an actual scientific paper. It starts when the researchers find people that can’t reliably tell men from women (using clues like hair length and clothing to “fake it”), but “on further research” a pair of twins are found who can reliably sort people into 22 different gender categories. Many of the categories are based on physical differences (e.g. clitoromegaly, hypospadias; cf this link for discussion of the story with some quotes that IMO help give a better feel for it.)

      While looking for the story online, I stumbled across The Murk Manual: How to Understand Medical Writing on Intersex by the same author from a year earlier. It is definitions of things related to gender ambiguity with a dash of Ambrose Bierce.

      Andro=male; gen=making. Androgens are administered to infants to prevent their becoming androgynes. See testosterone.

      androgen insensitivity
      The condition of infants who callously refuse to respond to testosterone treatment; the cause of many an endocrinologist’s hurt feelings.

      Several of the other links on that page were also interesting to me. And I got reminded that, even leaving aside the self-identification and sexual orientation aspects of the whole “gender/sex” nexus, there are a fair number of people out there who were not born as clearly male or female, and that up until fairly recently, this was seen as a “condition” to be “fixed” by pediatricians and others.

      1. plurabelle

        John Money, who created the idea of gender identity (psychological sex, which he believed to be a product of nurture), was an “expert” in intersex “normalisation”. He was the man who abused David Reimer and his twin brother in that famous experiment (both ended up committing suicide as adults). Present-day trans activists cite Money’s “failure” with Reimer as proof that “gender identity is innate”, which is horrifically unscientific and a ridiculous conclusion to jump to. The more obvious conclusion is that there is no such thing as gender identity, any more than there is race identity or class identity that can be separated from social roles, stereotypes, power inequalities and treatment (in short, material reality).

        I recommend historian of intersex conditions, Alice Dreger’s work, as well as this essay by the late founder of ISNA Kiira Triea on the connections between transgender activists and intersex activists, as well as the blog MRKH Voice.

        Dreger was targeted by transgender activists herself for defending a sexologist – J. Michael Bailey – who wrote a book about the two types of male transsexualism (autogynephilic and homosexual). She writes about her experience here and a more detailed version can be found in her book Galileo’s Middle Finger.

  11. Antipodean Socialist

    I am ashamed to report that attempting to express these views in New Zealand can get you condemned by the media as an ‘anti trans activist’, be jostled and harangued on a speaking tour, and have tomato soup poured over your head as Posie Parker was recently.

    Her speaking tour was called “Let Women Speak”. New Zealand has conclusively demonstrated that no, women can not speak, and the media will cheerlead from the sidelines.

  12. Henry Moon Pie

    In another discussion of this topic, I ran across the word “misgender” and thought it a very odd word. So who has been guilty of this misgendering of people? The technician performing a sonogram who announces to the parents, “It’s a girl!” Maybe the nurse who hands the newborn to its mother and says, “Here’s your beautiful baby boy.” So people who rely on objective, physical evidence to make a determination of gender are wrong because the real determinant of gender is self-identification.

    So how did this self-identification end up at odds with physical evidence? How could a man become trapped in a female body or vice versa? The 4th century church father, Origen, had a theory. He not only believed in a soul, but also asserted that souls were essentially eternal in both directions on the timeline. While most believers in souls agree that the soul goes on for eternity into the future, Origen believed that all souls were created simultaneously by God at the same time as God created the universe. These souls were held in some sort of divine warehouse until the moment of birth when a soul was removed from the warehouse and united with a body in the process of being born.

    Origen’s theory has interesting implications for abortion (a fetus would be a soulless piece of meat for Origen), and it can also help us with “misgendering.” If a man is trapped inside a female body, God’s logistics obviously screwed up. The wrong soul was pulled from the warehouse, and now we have a mess that can only be solved with a scalpel and hormones.

  13. fjallstrom

    Someone correct me if I’m wrong but sex can be identified by a third party. Your doctor for instance when you drop your drawers if you wear ’em.

    Since you asked to be corrected if wrong:

    For the large majority, yes. For those who are intersex, no.

    Same if you do genetics testing, the large majority is easily divided into two groups XX and XY, but there are those that doesn’t fit.

    Same if you do testosteron levels. And so on, there is in general an large or small overlap.

    1. Dandelion

      Intersex is s misnomer. The term now is Disorder of Sexual Development. Sex is determined at conception. All embryos start out on either a Mullerian or a Wolfian pathway; the two are mutually exclusive, similar to the 1 and 0 gates in binary code. The Mullerian pathway leads to development of a female reproductive system, the Wolfian to male.

      Sometimes, either due to chromosomal irregularity or some other cause, such as 5-ARD, that developmental pathway ends in a DSD. But every DSD is sex-specific. Only males can have 5-ARD or Kleinfelter’s. Only females can have Turner’s. Everyone with a so-called intersex condition is still either male or female.

      The percentage of babies born with genitalia so ambiguous that clinicians cannot observe either male or female is .019%. Genetic testing answers that question.

      The DSD community have asked that they not be used as an argument regarding gender identity, as their medical conditions are something different altogether and sometimes are accompanied by a whole host of other medical complications.

    2. plurabelle

      The vast majority of people who are classified as intersex (and they already form a tiny percentage of the total population) do not have ambiguous sex. They are as easy to classify as any male or female with typical sex development. I recommend the blog MRKH Voice for busting more myths about intersex people.

  14. fjallstrom

    To give an example Reed does not, suppose I deeply and sincerely, deep down in my soul, “identify as” rich. Why then cannot I buy a yacht?

    If you truly identify as rich, you probably can. As long as you and your new yatch is far away before the check bounces. The common term for it is “con man” and I understand to be succesfull at it you need to somewhere believe what you say (in effect actually identify with your words).

    For example, in school: If a person self-identified as a woman is, in biological reality, possessed of male genitalia, I am 100% certain I would not want them in my daughter’s locker room

    I am all for discussing practical solutions, but I think we need to see the practical solutions of yesterday as building on their beliefs. Our societies seperate but equal spheres rest on an older logic with seperate and unequal spheres for men and women, (though really mainly rich enough and white enough men and women, as strongly differentiated gender roles was a sign of 19th century civilization). In this 19th century context male homosexuality is criminalised (female sexuality being downplayed over all), so everybody is heterosexual and clearly male or female (or else). Above a certain age and class men and women are seperated into different spheres and schools, and women are mostly not allowed to do sports, so there is no locker room problem. (Farmer kids and working class kids may still go together skinny-dipping at the creek for a long time, but they are not who sets the norms, rather they are a moral problem to be solved.)

    Fast forward to the second half of the 20th century with women being allowed a seperate (and really in money terms very unequal) sphere for sports, and co-ed physical education in schools and the locker room problem emerges. But is easily solved by having seperate locker rooms for women. Everyone is straight (right?).

    In the 1980ies with more gay visibility you get a new locker room problem. What if a gay kids looks at a “normal” kid with attraction? With lust? I don’t know if this has passed with greater acceptance or if the age old solution of bullying the suspected gay kid until they don’t come to school (or at least not gym class) still rules supreme.

    And now we have a new locker room problem. In my childhood we often went to a slightly old swimming hall that had an option of individual stalls for changing. If the real problem is privacy, then that looks like an obvious solution. The seperate locker rooms never respected much privacy anyway.

    1. plurabelle

      I have never had an issue in a female-only toilet. When I lived in university accommodation in central Europe, I was told that the toilets and showers were unisex, that students used whatever toilets were nearest to their rooms. These are a few of my experiences:

      – All the locks on all the doors of the toilets were broken. The showers did not have locks at all. On one side of the hallway, the showers had sliding glass doors and the other side had military-style showerheads in an open space.

      – Toilets were almost always left unflushed. I also found shit on the toilet seat several times – clearly deliberate.

      – Huge Nazi phrases and symbols were carved deeply into the door leading from the sinks to the toilets. Nobody did anything about this.

      – Once, a woman came out from the showers very distressed because she was being filmed with an iPhone held above the showers. After that, I never felt safe using the showers.

      There is a huge difference between female-only toilets and unisex ones. If you take away female-only spaces, you reintroduce the urinary leash that is meant to keep women out of public space altogether. You must be a man (or a woman who has never borne the brunt of harrassment in unisex toilets) to think female-only toilets don’t offer anything in the way of privacy. (The statistics also bear this out, you can find them on the website Fair Play for Women. The expectation of single sex spaces did deter predatory and harrassing behaviour without a need to legally enforce it.) They are making elementary school toilets unisex (or self-identified which is the same thing) in many Western countries now! Just complete disregard for the rights of little girls. You will see them dropping out of school rather than change their pads in toilets with boys. This ideology is such misogynistic garbage.

  15. Cristobal

    To me this issue is just another example of how we, as a society, have wandered off into a kind of la la land completely divorced ffrom reality, caught up in sophisisms. Sex is mostly binary, as Steve M has said. It is an anotomical distinction that can be applied to a large percentage of the population. Given, there is a very small percentage of people who posess both male and female physical sexual characteristics that deserve special consideration.

    My problem is with the concept of ¨identification¨. This implies that there is a set of characteristics (other than physical) that are associated with male or female persons. What are they? sexual attraction? compassiion? agresiveness? empathy? Back when, in my youth, it was taken that every person has a range of these characteristics. Some men are very compassionate, some women are very agressive. That does not change their gender. Neither does sexual attraction, or the desire to dress in clothes usually worn by members of the opposite sex. If we are going to start classifying peoples´ gender on the basis of non-physical charactistics as masculline or feminine, Hillary Clinton and others of her ilk would be more masculine than Mike Tyson.

    The idea that one can ¨identify¨ as a person of the oposite sex to me takes egoism to an extreme. You are what you are whether you like it or not. Some people are beautiful, some are ugly. Some are men, some are women, but we are all diffferent psycologically (is this what we mean by gender?). If one feels that they are gender mis-identified that does not give them the right to impose that opinion on the rest of society. Throughout history in all cultures there have been people who did not fit the stereotypes of their actual physical sex. In many cultures these people were acknowledged as different, but accepted as what they were. We just have to live with the idea that life is a struggle for us all.

  16. VT Farm Wife

    Without being so specific that I accidentally identify the person in question, I have a very close relative, PhD in biochemistry and microbiology, who worked for decades as head of a research lab for one of the country’s biggest pharma companies. The stories this individual – widely respected for his honesty and integrity – told about what went on at pharma companies even in the 1970’s and 1980’s (before the Prescription Drug User Fee Act), have put me off taking any drug unless it is absolutely, unavoidably necessary. It’s entirely, completely, about the money, and if you doubt that one of the prime movers behind this recent explosion of confused gender identities that must be addressed with drugs and surgery is the pharma industrial complex, well, you’re awfully naive.

    On a number of occasions in his career this person refused to sign off on one or another piece of research, because he knew the work behind it to be faulty or insufficient, so the company would move him to another department in order to get the desired approval. He was never fired for such insubordination, probably because he was a stellar scientist and his work made and/or saved this company millions of $. No exaggeration.

    Sadly, this individual passed away in 2020; were he still alive, he’d have immediately suspected pharma companies of having a (large) hand in the current push for medicalizing all conditions, including gender confusion.

  17. Cetra Ess

    Let’s apply a similar distinction elsewhere.

    In Deaf culture there’s a group labeled CODA, which stands for Children of Deaf Adults. You’ve probably seen a few films recently about it. These are to all extents and purposes people who can hear but who share two cultures and languages, may identify as both hearing and Deaf. Deaf people do not question that they are Deaf, even if known as hearing, because they present and identify as Deaf.

    Let’s abstract further. French American. Israeli American. Italian American. None of these labels has posed a problem. We do not question self-professed identities in this category, we don’t seem to care if a person identifies as Italian-American yet cannot speak Italian or has never been to Italy, it’s not even relevant. That a person wants to be and attests as such seems sufficient.

    So where is the difficulty when the category is gender or sex (or race)? This puzzles me. In other instances we seem to implicitly understand that discrimination on various grounds is patently unfair or ridiculous, whether disability, race, religion, sexual orientation…

    So bringing this back to the Bostock question, how is gender to be determined, do we even need to determine gender at all?

    1. B24S

      Thanks, but I’ll question any “XXX-American”. It’s all “wanting your cake and eating it too”. While it can and does color our perspectives, I don’t see one’s extraction as particularly pertinent to ones’ loyalties. You were either born here, are naturalized, or are either a visitor or prospective immigrant from some other place (what have I forgotten?).

      My friends of Japanese descent who were imprisoned during WWII were Americans.

      It’s galled me to hear “Italian-American” since the 60’s when the Columbo and Bonano families (and all their friends) started complaining how their feefees were getting bruised by being called mafioso.

      I refuse to call myself Anglo-American, or Jewish-American, or whatever-American I can fish out of my gene-pool. Until we can all be “world citizen”, I’ll have to settle for simply “American”.

    2. JBird4049

      The Deaf community in the United States has had a continuity going back a few centuries now. The children of the Deaf are culturally Deaf, much as I am an American both legally and culturally. However, despite being hard of hearing my entire life, culturally I am not Deaf although legally I am more likely to be labeled as such. I chose to go oral and become mainstream, whereas others chose sign and become more with the Deaf community. It was not really either/or although fifty years ago there was more pressure to mainstream into the general hearing community. I There was, and I believe still, strong disagreements on how or if to go either route.

      All this shows how complicated life can be. I do wonder how my teachers would have acted today. Despite their strong opinions over sign and oral communication as well as on integration, it was never personal and was always about the welfare of their students and their families. Would today make it a holy crusade? I would hope not, but just as in all things human in this American, outside forces would probably make it it both a crusade and personal. The internet makes it much easy to do so, regardless of what the people actually involved want or care about. There is also the fact that my teachers would have taken no bs when it came to their students wellbeing.

      Perhaps, just as important being a member of a minority can be hard. If you can’t hear, there are always the jackasses that treat you less than an adult or perhaps less than human, or that you are faking it, or take personal offense that they might have to exert themselves so you can understand them, or want to wrap you in cotton and wool although that last is rare.

      The often abusive treatment can make an individual squirrelly and retreat into paranoia or anger;”I am not the problem. Bleep you all, you bleepers!! All of you people are out to get me!” Oh, yes. People can reasonably have a little, or not so little, list. I think that is often true myself, but everyone and all the time? No, but too many people become tinfoilled paranoiacs. And frequently use it as an excuse for their own bad behavior. Clear, rational behavior not allowed. Bomb throwing, hopefully metaphorically, is both welcomed and encouraged. It is the same possibility of someone who is part of any minority.

      To wind back to the points that I am actually trying to make is that too much of this trans rights and IdPol Wokeism is garbage, but there is often a hard kernel of truth, which is often being carried by seriously embittered people who often are not thinking too clearly about something, and they are likely stirred up and being used by others. Sometimes the use is honest and for the greater good as the user perceives it. Other times it is just more professional activists and politicians seeking to get a larger rice bowl and to Hell with the cost to others.

      Life is complicated.

    3. Ozquoll

      Most don’t care if people call themselves Italian-American or American-Italian or Martian-Venusian because it doesn’t affect the way other peope go about their lives. Males identifying as women affects women’s sports, changerooms, toilets, prisons, crime stats, prizes, political quotas, etc.

      1. Cetra Ess

        Not where I am, it doesn’t. Not a problem for changerooms or toilets. Even the prisons just put trans women in women’s prisons. Not sure how it would affect crime stats or political quotas. Or prizes. But it just goes to show, I think, that it can be done, can easily just become a regular and accepted part of society.

        I think a lot of this backlash is people desperately trying not to let that happen. It actually reminds me of when I was in uni, it was a time when gay marriage was the hot issue in the US and Clinton had voted against it. I was arguing with soooo many people who thought homosexuality was abhorrent and unnatural, were dead set against allowing gay marriage. Now, to their credit, many of those same people have come to accept it, have learned to see revise their views.

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