Is Bostock v. Clayton County, Georgia, which ruled LGBT discrimination in employment violates Title VII of the Civil Rights Act of 1964, a groundbreaking and historic victory for LGBT Americans? Possibly.
On the surface, the ruling seems to address one of the most commonly voiced concerns for LGBT rights in America: employment discrimination. With some states protecting LGBT people from employment discrimination and others not, the argument has long been that one can “still be fired for being gay.” This ruling effectively makes discrimination based on LGBT status illegal nationwide, although nowhere in America has the law argued in favor of this discrimination.
While 91 percent of Fortune 500 companies already self-regulate against discrimination based on sexual orientation and 83 percent on gender identity, it has long been argued that employment discrimination is an immediate threat to LGBT people. As Lambda Legal tweeted, quoting its CEO Kevin Jennings, “In many ways this is an even bigger decision than the Obergefell decision that came down five years ago. Not everyone will want to get married, but everybody has to have a job.”
However, an important aspect of this ruling may negatively affect LGBT advocacy about transgender rights and social acceptance.
Decision Could Come Back to Bite the LGBT Cause
In the 6-3 opinion, wherein Chief Justice John Roberts and Justice Neil Gorsuch sided with the four leftist justices, Gorsuch wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Yet only days ago, J.K. Rowling was accused of transphobia for saying biological sex is, indeed, real. Rowling tweeted June 6, “If sex isn’t real, there’s no same-sex attraction. If sex isn’t real, the lived reality of women globally is erased. I know and love trans people, but erasing the concept of sex removes the ability of many to meaningfully discuss their lives. It isn’t hate to speak the truth.”
It seemed the whole of LGBT advocacy, media, and Hollywood, including prominent actors in the Harry Potter films, descended onto Rowling to denounce her. In recent years, the argument that biological sex, male and female, is unscientific has gained steam in left-wing and LGBT advocacy. George Takei, for example, recently declared, “When you defend so-called ‘biological sex,’ you sound scientifically ignorant and you elevate transphobia.”
The Supreme Court ruling, celebrated as historic for LGBT rights, appears to agree with Rowling’s argument. In order to base gay and transgender rights on the assumption of sex protections, sex itself must be objectively defined. If sex is fluid or subjective, this ruling leaves nothing for LGBT advocates to hold onto.
The ruling assumes sex and then works backward, arguing sexual orientation and gender identity must be protected, based on the assumptions made about sex. If the transgender argument — that sex is mutable — is to be considered factual, the ruling becomes invalid.
By linking the rights of gay and transgender people to sex, the LGBT left has bound itself to whatever definition “sex” takes on. The more fluid and subjective it becomes, the less firm and predictable rights for gay and transgender people will become. For now, this does not seem to be a concern or even a consideration, as all they can see is victory. But they rarely think these things through to their logical conclusions.
Threatens Religious Liberty and Separation of Powers
Is this a defeat for President Trump, as CNN bluntly declared? Advocates of separation of powers are concerned. As Justice Brett Kavanaugh described in his dissent:
In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.
This ruling threatens religious liberty as well. Religious schools of any number of faiths are designed to instill a specific way of life, which is why many parents send their children. Is it reasonable for a religious school to determine that an openly gay or transgender teacher presents a moral conflict at odds with the school’s teaching? Up until now, this was not a question for the government to decide. That may no longer be the case.
As for its perceived benefit, the ability to sue employers for discrimination will almost certainly lead to abusive demands by LGBT advocates with ever-growing demands of what constitutes “discrimination.” Symbolically, it is certainly a superficial victory for LGBT advocates who obtain personal validation by grand, public declarations of support and acceptance. But as is typical, the left ignores the potential consequences of their impatience.