By a surprising 6-3 majority that included “conservative” justices Neil Gorsuch and John Roberts, the U.S. Supreme Court ruled Monday that the prohibition of employment discrimination based on “sex” contained in Title VII of the Civil Rights Act of 1964 covers “sexual orientation” and “gender identity.” Regardless of whether one approves of this stunning rewriting of legislation, the logic used to justify it is truly astounding.
The central argument of Gorsuch and those who joined his Bostock v. Clayton County, Georgia opinion was this: “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.” This is an absurd argument.
It operates on the nonsense premise that if biological sex is a benign and neutral condition of life, so too are any and all actions undertaken by a member of one sex if they would be accepted in the other sex. One must only think analogically to see this is not an acceptable premise.
Simple Exercises in Analogical Reasoning
By this reasoning, a man must be allowed to join a professional women’s sports team if he shows himself to be equal or better than the women on the team, irrespective of whether the man in question identifies as a woman. Denying his employment would be sex discrimination because, if not for his sex, he would be accepted onto the team. That, according to this court, is sex discrimination in hiring practices.
By the same reasoning, a male employee cannot be fired for entering a female restroom or locker room, irrespective of whether he identifies as a woman, because the only reason for his being denied entrance is his sex — ergo, sex discrimination in employment retention practices.
By the same reasoning, if a business allows male employees to swim in a company pool without wearing a shirt, it cannot fire or in any way penalize female employees who do the same. Otherwise, they would be discriminating on the basis of sex because, if not for their sex, women too would be allowed to take off their shirts.
When Ideology Reigns
This is the court’s textbook definition of sex discrimination in employment practices today: Sex discrimination in hiring or retention refers to any situation where a person would otherwise be hired or retained if not for his or her sex. Such a ruling obliterates any commonsense distinctions between the sexes and, worse still, makes a defining of sex clearly subjective and superfluous. The logic of the majority’s argument does not even require that men pretend to be transgender.
The court requires that we all subscribe to the patently false view that there are no substantive biological differences between the sexes that employers must take into account. So long as a man is permitted to behave a certain way in an employment situation, a woman must be allowed as well, and vice versa.
This court decision was reached with an ideological objective in view, not with logic or textualism as the goal. And the ideological objective can only be characterized as an extreme, left-wing view of human sexuality that at best requires one to stop thinking analogically.