Justice Neil Gorsuch’s majority opinion 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. After all, Gorsuch’s argument is an argument about 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.
So, under the Gorsuch test, if changing the plaintiff’s sex would change the outcome, then sex discrimination has taken place. To see the concrete implications of such an approach, just look at what Gorsuch’s theory requires: Suppose a female lifeguard is fired because she wears a swimsuit bottom but refuses to wear a top. No doubt, “changing the employee’s sex would have yielded a different choice by the employer” and her sex was a “but-for” cause of the decision. Yet her termination was not sex discrimination provided it held males and females to the same standard: 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 women’s locker room and is fired. Now it’s true that “changing the employee’s sex would have yielded a different choice by the employer” and that his sex was a “but-for” cause of the decision to fire him. But the negative treatment the employee faced was not sex discrimination provided the employer imposed no double standard for men and women, such as a bathroom policy that imposed the same burden on men and women: each is prevented from entering the opposite sex’s private space. 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.
There Is a Better Test for Sex Discrimination
Gorsuch’s theory does not test for sex discrimination. To be a case of sex discrimination, sex must not only be a “but-for” cause of differential treatment, but 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.
Indeed, far from being an instance of sex discrimination, preventing males from entering women-only private facilities is usually viewed as being required by equal concern and regard for women. Justice Ruth Bader Ginsburg took this point for granted in her majority opinion in United States v. Virginia when she explained that, for the all-male Virginia Military Institute to become coed, it “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.” Moreover, in 1975, when critics argued that the Equal Rights Amendment would require unisex intimate facilities, then-Professor Ruth Bader Ginsburg explained that a ban on sex discrimination would not require such an outcome: “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” An employer who allowed males to enter private women-only facilities could expect a Title VII lawsuit asserting it fostered a hostile work environment for women by allowing their privacy to be violated. But who knows how Justice Gorsuch would now evaluate such a claim.
An approach that looks for sex-based double standards is not only the best reading of the statute. It also 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 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 Justice Ginsburg, embraced by the unanimous Court, was sound—unlike the new theory put forth by Gorsuch. And Justice Gorsuch’s opinion ignores altogether Justice Ginsburg’s sound test for sex discrimination.
In Price Waterhouse v. Hopkins, the plurality opinion of the Supreme Court observed that under Title VII, sex “must be irrelevant to employment decisions.” This requires, as the plurality opinion in Price Waterhouse also said, that sex not be used to create “disparate treatment of men and women.” Expanding on this point, Justice Sandra Day O’Connor’s concurrence pointed out that an employee’s sex may “always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and about which they may comment in a perfectly neutral and nondiscriminatory fashion.” Title VII does not require blindness to sex; it requires “neither asexuality nor androgyny.” But Gorsuch’s new rule does.
Title VII forbids unfairness because of sex. It doesn’t ban all sex-conscious standards, just double standards. But Gorsuch’s theory of sex discrimination would rule out (as discriminatory) any policies that advert to sex, rather than only those sex-related policies that result in “disparate treatment of men and women,” where individuals of one sex suffer under “disadvantageous terms” that individuals of the other does not. Gorsuch’s theory—“if changing the employee’s sex would have yielded a different choice by the employer”—entails asexuality and androgyny.
Three Distinct Concepts, Three Distinct Intentions, Three Distinct Forms of Discrimination
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 involve 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, there’s no sexual double-standard, so there’s 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. People can debate whether Congress’s decision not to pass sexual orientation and gender identity laws is or is not a good thing, but as a legal matter, the issue is clear. Discrimination on the basis of sex is prohibited, but discrimination on the basis of sexual orientation and gender identity is not—for it is not included in “sex” even if “inextricably bound up with sex.”
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, where acting based on true beliefs about human sexuality is redescribed as discriminatory.
The Implications of Gorsuch’s Ruling
Which is why it is troubling that Gorsuch wasn’t willing to consider what his theory of sex discrimination entails for other employment considerations or for other federal laws. He notes that many people:
worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
But the simple test Gorsuch applied to answer “yes” to this question yields ready answers in all these other contexts. Just recall the bathroom and dress code examples given above. Or consider a case of athletics, where “changing the [student’s] sex would have yielded a different choice by the [principal].” 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? “the [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 telling that Gorsuch is evasive about which of these outcomes is required by his theory.
Gorsuch Presumes a Sex Binary, Even As He Helps Erode It
It is also noteworthy that Gorsuch uses the phrase “gender identity” once, and not in his own voice. He uses “transgender status” eighteen times. Indeed, his entire opinion rests on a sex binary. What would he say about “gender ambidextrous” or “nonbinary” identities, since these identities have no relation to sex at all? When Gorsuch claims that “transgender status [is] inextricably bound up with sex” because “transgender status” is defined precisely in opposition to sex, he presumes the very sex binary his opinion will help to further erode. How will he argue that a genderfluid or genderqueer identity is “inextricably” bound to sex?
Consider what Diane Ehrensaft, the director of mental health at the Child and Adolescent Gender Center at Benioff Children’s Hospital, University of California San Francisco, 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 who is “a gender hybrid, or gender ambidextrous, moving freely between genders, living somewhere in-between, or creating their own mosaic of gender identity and expression”? 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 the term “transgender status” rather than “gender identity.” But it is wishful thinking if he thinks this will be a limiting principle going forward.
What Do We Do Now?
So, what should we do now? Gorsuch’s opinion more than once seemed to invite Congress to exercise its role as a check and balance on the Court. It strikes me that there are three paths forward. (And that state and local governments should consider similar measures.)
First, Congress could explicitly state that when it uses the word “sex” in civil rights statutes, it does not refer to sexual orientation and gender identity. It could clearly state that Gorsuch’s logic of sex discrimination is not that of the Congress.
Second, if Congress is unwilling to directly correct the Court, 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 protect certain actions and decisions as not constituting “discrimination.” This would protect the ability of all 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 sex-specific housing, bathrooms, and locker rooms were not unlawful discrimination. This was not a carve-out for religious entities; all institutions could have sex-specific facilities, because doing so is not discriminatory at all. Likewise with abortion: in Bray v. Alexandria Women’s Health Clinic, the Supreme Court resolutely rejected the idea that pro-lifers commit invidious discrimination against women: “Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women.”
Thus, local, state, and federal laws were enacted to protect pro-lifers’ rights. The Church and Weldon Amendments have protected pro-life medical personnel refusing to perform or assist with abortions, and the Hyde Amendment and Mexico City policy have prevented taxpayer funding of abortion.
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 would have 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.