Justice Gorsuch’s Misguided Sex Discrimination Opinion Fails Logic Test

Ryan T. Anderson @RyanTAnd / June 19, 2020

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 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.

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