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 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 . 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. 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).
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?
 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.
 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.