On June 15, 2020 the Supreme Court handed down a very interesting ruling in Bostock v Clayton County. This ruling outlaws employment discrimination against homosexuals and transgender persons nationwide based on interpreting the 1964 Civil Rights Act’s “sex” provision to include implicitly homosexual and transgender people.
This ruling is fascinating because on the one hand it makes perfect sense in line with current cultural ideas and assumptions and fits with the court’s history of interpreting laws according to the cultural presumptions of the time and at the same time the ruling is completely ridiculous in terms of what “sex” meant to the drafter’s of the 1964 Civil Rights Act in 1964 and even in terms of what “sex” means in most people’s minds and assumptions today. But still interpreting “sex” to include homosexuals and transgenders gives a favorable policy outcome according to what most people think is fair and right today thereby justifying the interpretation of “sex” as including implicitly sexual orientation and transgender identity even though in 1964 obviously “sex” was not thought of so broadly.
“TITLE VII—EQUAL EMPLOYMENT OPPORTUNITY
DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN
SEC. 703. (a) It shall be an unlawful employment practice for an employer—
(1) 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; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
What the Supreme Court focuses on in its Bostock v Clayton County ruling is the phrase “because of” preceding the prohibited grounds for discrimination and the inclusion of “sex” in the list of prohibited grounds of discrimination therefore “because of” “sex” being prohibited. “Because of” then is interpreted to indicate a “but-for cause” of the decision to discriminate. If “sex” is included in a decision to discriminate then the discrimination based on sex is unlawful; if the discrimination would not have happened “but-for” the person being the sex that they are then the discrimination is due to the person’s sex and therefore is unlawful.
This is the logic of the majority ruling in the Bostock case and it is brilliant really, it fits perfectly with the logic that “sex shall not matter” in regards to employment practices that clearly was intended by including “sex” in the prohibited grounds for discrimination in the 1964 Civil Rights Act. But of course the intended meaning of “sex” in the 1964 Civil Rights Act was whether one was male or female; whether one was male or female “shall not matter” according to the 1964 Civil Rights Act. Now here with this Bostock ruling the Supreme Court is taking this principle of it “shall not matter whether one is male or female” to its current day logical extreme that not only should it not matter if one is male or female regarding employment decisions but more so more extremely it should not matter in any way whether one is male or female as it relates to the employment realm.
Here is the trick to including homosexuality and transgenderism under the umbrella of “sex” as a prohibited grounds for employment discrimination; homosexuality is a man being attracted to another man or a woman being attracted to another woman; in other words the SEX of the person involved determines their sexual orientation; a man attracted to a man is gay, a woman attracted to a man is heterosexual; both are attracted to men, however it is the SEX of the person which determines whether they are gay or straight in reference to who they are attracted to; therefore sexual orientation is derivative of SEX, therefore discrimination based on sexual orientation is derivative of the SEX the person is, therefore discrimination based on sexual orientation is derivative of discrimination based on SEX; discrimination based on SEX being prohibited therefore discrimination based on sexual orientation necessarily being prohibited.
The same logical sequence works regarding transgenderism; both a man and a woman can regard themselves as a woman; when the man regards “herself” as a woman “she” is transgender, when a woman regards herself as a woman she is simply a woman, a “cisgender” woman you might say, whether one is transgender or not therefore is determined by the SEX one is in relation to the sex they present themselves as being; transgenderism therefore being derivative of SEX; discrimination against a transgender individual therefore being derivative of discrimination based on SEX; therefore being a prohibited basis of discrimination.
Diabolically brilliant I say, homosexuality and transgenderism are just sub-categories of the broader concept of “sex.” I agree with this totally! Logically speaking if it is prohibited to consider sex in any way regarding employment practices and employment decisions then it makes sense to prohibit considering homosexuality or transgenderism in regards to employment decisions since indeed the very concepts of homosexuality and transgenderism are indeed related to sex.
What is the solution to this dilemma for social and religious conservatives? Advocate for discrimination based on sex! Advocate for removing the inclusion of “sex” in the original 1964 Civil Rights Act so that only discrimination based on race religion and national origin is prohibited. Argue in favor of the legitimacy of employment discrimination based on sex!
I realize this sounds crazy and like going off the deep end but seriously why not argue based on first principles. The original error is equating sex to race; it was wrong to claim that discrimination based on race is equivalent to discrimination based on sex in the first place. Discrimination based on sex has value to society and family life; discrimination based on sex has an honorable history and is part of a noble past.
Discrimination against homosexuality and transgenderism can certainly be supported in a broader social context that supports and understands discrimination associated with and related to sex. In a broader context of traditionalism heterosexuality can be seen as the positive good that it is and transgenderism can be seen as the disordered identity that it is; that inherited biological sex does indeed matter. If however one concedes that discrimination based on sex is bad then I don’t see how one is going to be able to argue against homosexuality and transgenderism successfully or logically or rationally in this cultural climate. It is no longer taken for granted or “common sense” that homosexuality is wrong or that transgenderism is wrong. I don’t see how religious conservatives or social conservatives more generally are going to be able to argue for “natural” sexual attraction or “natural” gender identity without returning to the basic foundation of the difference between male and female and why the difference between male and female is important and good.