Not So Unexpected Consequences

In pursuit of flattery from the Left, Justice Gorsuch went badly astray, with predictable consequences.

This essay originally appeared in Law & Liberty, on February 10, 2021 (here). Thanks to Tennessee Conservative News (here) and Instapundit (here)!

“Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.” With these haughty words, Justice Neil Gorsuch opened his now-famous 6-3 decision in Bostock v. Clayton County (2020), which interpreted the phrase “because of … sex” in Title VII of the Civil Rights Act of 1964 to include—in addition to biological sex—homosexuality, sexual orientation, gender identity, and transgender status.  What Gorsuch referred to as “unexpected consequences”—the astonishing conclusion, reached a half-century after Title VII was enacted, that the law has always prohibited discrimination on the basis of characteristics that Congress repeatedly declined to adopt, most recently in H.R. 5 in 2019—Justice Samuel Alito more accurately described in dissent as “legislation.”

Alito acidly pointed out that “Usurping the constitutional authority of the other branches, the Court has essentially taken H.R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.” The majority opinion in Bostock (joined by Chief Justice John Roberts in addition to the Court’s liberal bloc) poopooed concerns that “our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.” How silly; “none of these other laws are before us,” he scoffed. And the parade of horribles about the demise of “sex-segregated bathrooms, locker rooms, and dress codes”? Gorsuch breezily dismissed such concerns: “We have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”

Gorsuch and his colleagues were right about one thing in Bostock. Less than a year after the decision was issued, the “major initiative” represented by Bostock—a holding that Alito’s dissent caustically termed “preposterous,” “arrogant,” and “illogical”—has guaranteed the inevitable (and not unexpected) consequences. Advocates for the radical LGBTQ agenda, in the form of President Joe Biden’s January 20, 2021 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, have cited Bostock as authority for an across-the-board edict outlawing all discrimination on the basis of  gender identity or sexual orientation within the purview of federal law. The Executive Order declares:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.  Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.  Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.  People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.  All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.  

President Biden predictably cited as authority for this sweeping decree the execrable decision in Bostock:

These principles are reflected in the Constitution, which promises equal protection of the laws.  These principles are also enshrined in our Nation’s anti-discrimination laws, among them Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.).  In Bostock v. Clayton County, 590 U.S. ___ (2020), the Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation.  Under Bostock’s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.

The E.O. expressly encompasses transgender status, and is unlimited in scope:

It is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.  It is also the policy of my Administration to address overlapping forms of discrimination. 

All federal agencies are ordered to undertake a review of all existing orders, regulations, guidance documents, policies, programs, or other agency actions “as soon as practicable,” and within 100 days to develop a plan to implement the terms of the E.O., including the determination whether agencies should revise, suspend, or rescind non-conforming agency actions, or promulgate new agency actions. The Executive Order is, in short, a revolutionary reformulation of federal policy with the stroke of a pen.

The most controversial aspect of President Biden’s E.O., or at least the item that has received the greatest attention to date, is the likely impact on women’s sports. Title IX prohibits sex discrimination “under any education program or activity receiving Federal financial assistance.” This encompasses athletic programs conducted by schools receiving federal funds, including federal student loans. Under the terms of the E.O., therefore, transgender women–biological men who identify as women—must be permitted to compete in women’s sports. Federally funded institutions will be forced to allow biological men access to women’s sports and scholarships meant for women in sports.  This would include virtually all colleges and universities, and nearly every public high school in America. 

Representative Mark Green (R-TN), a medical doctor, points out the incongruity of this development on the 100th anniversary of women’s suffrage:

Congress passed Title IX in 1972 to help break the glass ceiling for women, but President Biden’s Executive Order reinstates that very glass ceiling. Title IX was predicated on the fact that the biological makeup of males and females differ dramatically. That’s the reason Congress passed this important legislation – to grant women fair access to federal funding for sports and academics. Prior to Title IX, only 1 in 27 women played varsity sports, but today nearly half of girls participate in varsity sports. Before Title IX only 32,000 women competed in college sports, now 150,000 women do. Prior to Title IX athletic scholarships were virtually non-existent, now there are nearly 10,000 athletic scholarships for women.

Allowing biological males to participate in women’s sports erodes protections for women and is fundamentally unfair. The science is clear – men have about ten times the level of testosterone as women. Even after taking testosterone-suppressing hormones, a man’s bone and muscle structure remains intact. According to a new study, transgender athletes maintain a competitive edge even after a year of hormone therapy. According to that study, even after two years of taking estrogen, transgender women were still 12 percent faster than biological women.

As Abigail Shrier explained in the Wall Street Journal, the biological differences between the sexes are so pronounced that “the fastest female sprinter in the world is American runner Allyson Felix, a woman with more gold medals than Usain Bolt. Her lifetime best for the 400-meter run is 49.26 seconds. Based on 2018 data, nearly 300 high-school boys in the U.S. alone could beat it.” Competition between biological men and women is a misnomer; “in contests of strength and speed, the athletic chasm between the sexes, which opens at puberty, is both permanent and unbridgeable. Once male puberty is complete, testosterone suppression doesn’t undo the biological advantages men possess: larger hearts, lungs and bones, greater bone density, more-oxygenated blood, more fast-twitch muscle fiber and vastly greater muscle mass.” The demise of women’s sports is merely the tip of the iceberg. Shrier elaborates: “Battered women’s shelters, women’s jails and other safe spaces that receive federal funding and constitute ‘dwellings’ under the Fair Housing Act may be next. Women’s rights turn out to be cheap and up for grabs.” 

Professor Nelson Lund, one of many critics who assailed the Bostock decision, wrote that “Bostock is an outlandish judicial performance. Its argument that the words of Title VII’s prohibition of sex discrimination unambiguously outlaw discrimination based on homosexuality and on being transgender is analytically untenable.”  It is possible that President Biden would have adopted the same executive order without the benefit of Justice Gorsuch’s decision in Bostock. We’ll never know. What we do know is that Bostock is prominently cited as authority for President Biden’s radical re-making of federal policy by executive edict.

“Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.” Indeed. Words that will live in infamy.

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