Symposium: The simplistic logic of Justice Neil Gorsuch’s account of sex discrimination

Ryan T. Anderson is the William E. Simon Senior Research Fellow at The Heritage Foundation and the John Paul II Teaching Fellow at the University of Dallas. He filed an amicus brief in support of the employers in Bostock v. Clayton County and Harris Funeral Homes v. EEOC, which he then revised into an article for the Harvard Journal of Law and Public Policy.

Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County claims to apply a simple and straightforward test: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” But he refuses to consider what applying this simple—in reality, simplistic—test actually requires—and not just under Title VII, but under every nondiscrimination law that includes “sex” as a protected category, notably including Title IX. Gorsuch’s argument rests on the logic of sex discrimination. Alas, he got that logic wrong. And had he considered what applying it to other cases would require, he might have been forced to reconsider his misguided theory. This mistaken theory of sex discrimination will have far-reaching negative consequences down the road.

Gorsuch argues that whenever sex is a “but-for” cause of a negative employment decision, sex discrimination has occurred. He writes:

If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer—a statutory violation has occurred.

And Gorsuch offers examples of how this plays out. Here’s one:

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.

Under the Gorsuch test, if changing the plaintiff’s sex would change the outcome, sex discrimination has taken place. Suppose a female lifeguard is fired because she wears a swimsuit bottom but not a top. No doubt, “changing the employee’s sex would have yielded a different choice by the em­ployer.” Yet her termination was not sex discrimination provided that a male lifeguard who exposed private parts would have similarly been fired. That male and female bodies differ—and thus require different swimsuits to prevent exposure—doesn’t amount to discrimination unless one embraces a simplistic theory. And, of course, nothing hinges on whether this lifeguard currently “identifies” as a woman or a man.

Consider another example. Suppose a male employee at a fitness center repeatedly goes into the woman’s locker room and is fired. Now it’s true that “changing the em­ployee’s sex would have yielded a different choice.” But the negative treatment the employee faced was not sex discrimination, provided the employer imposed no double standard for men and women, because each are prevented from entering the opposite sex’s private space. And yet, with Gorsuch’s opinion, the Supreme Court has embraced a theory of sex discrimination that prevents employers—and schools—from keeping males out of female-only spaces. Either that, or it believes only males with a “transgender status” have the privilege of entering female-only spaces.

Gorsuch’s theory does not test for sex discrimination. In a case of sex discrimination, sex must not only be a “but-for” cause of differential treatment; that differential treatment must also entail disadvantageous terms or conditions to which members of only one sex are subjected. The simplistic test that Gorsuch puts forth looks for the “but-for” cause and “negative” treatment, but it doesn’t link the two: It doesn’t look for disadvantages directed at individuals of only one sex. He’s offered half a theory of sex discrimination.

An approach that looks for sex-based double standards is not only the best reading of the statute; it fits Supreme Court precedent involving Title VII, as I explain in the Harvard Journal of Law and Public Policy. The Supreme Court unanimously held in Oncale v. Sundowner Offshore Services, Inc. that Title VII requires “neither asexuality nor androgyny.” What it requires is equality and neutrality. It forbids double standards for men and women—policies that disfavor at least some individuals of one sex compared with similarly situated members of the other. The court in Oncale quoted Justice Ruth Bader Ginsburg to explain: “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” This reading by Ginsburg, embraced by the unanimous court, was sound—unlike the new theory put forth by Gorsuch. And Gorsuch’s opinion ignores that sound test altogether.

Title VII forbids unfairness because of sex. It excludes not just any sex-conscious standards, but double standards. But Gorsuch’s theory of sex discrimination would rule out any policies that advert to sex, rather than only those sex-related policies that result in “disparate treatment of men and women” (Price Waterhouse v. Hopkins) under which individuals of one sex suffer “disadvantageous terms” that individuals of the other do not (Oncale). Gorsuch’s theory—“if changing the em­ployee’s sex would have yielded a different choice by the em­ployer”—entails asexuality and androgyny.

So Gorsuch has embraced a simplistic theory of discrimination. In doing so, he redefined sex to entail distinct concepts because, he claims,

homosexuality and transgender status are inex­tricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some dispar­ate impact on one sex or another, but because to discrimi­nate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.

But discrimination based on sex, sexual orientation and gender identity involves fundamentally different types of motivation, and hence intention, and hence discrimination. Three examples will illustrate this.

First, consider an employer who will not employ women but will employ men, or who will not employ women with kids but will employ men with kids. This would be discrimination on the basis of sex, because “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” It is a double standard for men and women.

By contrast, consider an employer who will hire straight men and women, but not men and women who identify as gay. Men and women are exposed to the same exact terms and conditions, so this would not be discrimination based on sex. The employment action does not hinge on male or female, but on gay or straight. Even if “homosexuality … [is] inex­tricably bound up with sex,” that doesn’t change this reality.

And lastly, consider an employer who will hire so-called cisgender men and women, but not transgender men and women. Here, too, men and women are exposed to the same exact terms and conditions, so this would not be discrimination based on sex. The employment action here is not concerned with male or female, but with cisgender or transgender. And so, likewise, even if “transgender status [is] inex­tricably bound up with sex,” that doesn’t change which factor was decisive: Men and women are held to the same exact standard, so there’s no sexual double standard and no discrimination on the basis of sex.

Now, whatever one may think about these three cases as a matter of ethics or policy, Congress acted in 1964 to address only the first case—and it has explicitly rejected policies to address the latter two. Of course, there is good reason why Congress has rejected calls to legally prohibit discrimination on the basis of sexual orientation and gender identity. Much of what the activists contend is discrimination is simply disagreement about human sexuality, when acting based on true beliefs about human sexuality is redescribed as discriminatory.

It is troubling that Gorsuch wasn’t willing to consider what his theory of sex discrimination entails for other situations. But the simple test Gorsuch applied here yields ready answers in other contexts. Just recall the bathroom and dress code examples given above. Or consider a case of athletics, involving a high school male who identifies as a girl but is prevented from entering the girls’ locker room or playing on the girls’ basketball team. What would Gorsuch say? “[T]he [principal] intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in a [student] identified as female at birth.”

Gorsuch’s position would either require the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than his or her objective biology.

It is also noteworthy that Gorsuch uses the phrase “gender identity” once, and not in his own voice. He uses “transgender status” 18 times. Indeed, his entire opinion rests on a sex binary. What would he say about “nonbinary” identities, which have no relation to sex at all? Although Gorsuch can claim that “transgender status [is] inex­tricably bound up with sex” because “transgender status” is defined precisely in opposition to sex and he presumes the very sex binary his opinion will help to further erode, how will he argue a genderfluid or genderqueer identity is “inextricably” bound to sex?

Consider what mental health expert Diane Ehrensaft says about genderfluid children: “They refuse to pin themselves down as either male or female—maybe they are a boy/girl, or a gender hybrid, or gender ambidextrous, moving freely between genders, living somewhere in-between, or creating their own mosaic of gender identity and expression.”

This understanding of gender identity is utterly detached from sex, not inextricably connected to it. How will Gorsuch handle a plaintiff like this? Whatever we think about these identities, they have no relation at all to sex. The logic of Gorsuch’s opinion, such as it is, makes no sense once you get beyond “trans” gender and consider contemporary gender theory. Perhaps that is why he used “transgender status” rather than “gender identity.” But it is wishful to think this will be a limiting principle going forward.

So what should we do now? Gorsuch’s opinion more than once seems to invite Congress to exercise its role as a check and balance on the court. It strikes me that there are three paths forward.

First, Congress could clarify that when it uses the word “sex” in civil rights statutes it does not refer to sexual orientation and gender identity.

Second, Congress could provide robust religious liberty protections to ensure that this mistaken theory of sex discrimination does not harm the free exercise of religion.

Third, Congress could state that certain actions and decisions do not constitute “discrimination.” This would protect the ability of institutions to, for example, offer single-sex facilities and programs—think athletics—on the basis of biology rather than identity.

Consider a parallel. When Congress passed Title IX’s ban on sex-based discrimination in education, the implementing regulations clarified that providing sex-specific housing, bathrooms and locker rooms was not unlawful discrimination. Likewise with abortion: Local, state and federal laws were enacted to protect the rights of medical personnel refusing to perform or assist with abortions.

So, too, Congress could clarify that bans on sex discrimination do not require any institution to allow males to compete against females in athletics or use women-only locker-rooms and shelters. It could explicitly say that no physician has to engage in so-called gender-affirming care, and no individual or institution has to act in ways that undermine their conviction that marriage is the union of husband and wife.

Americans disagree about sex. That’s not news. How we manage these disagreements will be.