Scenes From a Revolution? After Bostock
The broad concern is that Bostock will be for the “transgender” cause what Roe meant for abortion and what Obergefell was for homosexuals: the landmark Supreme Court victory making a transformative agenda into national law. But it is not.
Many people worry that the Supreme Court’s decision last month in Bostock v. Clayton County heralds a social revolution. In three cases decided together on June 15, the Court held that the Title VII ban on “sex” discrimination in employment includes discrimination on account of homosexuality and “transgender” status. Because our legal culture already adjusted to same-sex relationships (including civil marriage, per the Court’s 2015 decision in Obergefell v. Hodges), the worry now is mainly about the “transgender” half of Bostock. Will it lead straightaway to coed restrooms? What does Bostock portend for girls’ and women’s athletic competitions? For doctors and hospitals who refuse to mutilate healthy tissue in alleged “sex-change” operations? For mandatory use of a worker’s preferred pronoun?
The broad concern is that Bostock will be for the “transgender” cause what Roe meant for abortion and what Obergefell was for homosexuals: the landmark Supreme Court victory making a transformative agenda into national law.
Bostock is indeed a stumbling block to all of us who recognize that gender dysphoria is a serious psychological disturbance, one which is not humanely or effectively treated by affirming anyone’s ersatz “transition” to the other sex. (In fact, the biggest losers after Bostock might well be gender-dysphoric workers who are enabled in a false gender identity.)
Bostock is not, however, the “transgender” Roe or Obergefell. More exactly: It need not be, and will not be, so long as the American people, including those who exercise public authority, do not let it be.
By “not let[ing] it be” I do not envision a campaign to reverse Bostock (which Congress could and should do, but won’t.) I am not talking about interstitial legal resistance, as one might describe so many informed-consent and maternal-health abortion regulations, surrounding what amounts to intact abortion on demand. Much less am I thinking of guerilla resistance on the ground; that is, slow-walking any transformations unless or until a judge specifically requires it.
As a matter of fact, I support all of those responses to Bostock. But what I have in mind now is adhering to Bostock by a straightforward reading of it. Call it “textualist” if you like. The main thing is not to attribute to Bostock assumptions it did not make, or consequences that it expressly disavowed. That holding is mischievous enough for one day. Let us take up tomorrow’s challenges in due course and on their own terms.
The “textualist” reading of Bostock has two anchor points. One is the Court’s preservation of the metaphysical distinction between biological sex and subjective gender identity. One is about nature, and the other is about one’s chosen ““identity.” This is the keystone in the arch of fair legal treatment of everyone affected by the “transgender” panic that we are living through. The other anchor is the Court’s emphatic insistence upon the limits of the question there presented and answered. Pivoting upon the first, downstream lawmakers can still do right on the many questions left open by the second.
Let me explain.
Bostock is guilty of sophistical legal reasoning in the first degree, as many commentators have argued and as Dr. Paul McHugh and I will show in a forthcoming joint essay. But it did not go off the rails on the metaphysical question at the heart of the roiling big argument about “transgender,” namely, whether some persons are actually born in the wrong bodies (and thus whether the truth about one’s sex resides somewhere else, perhaps in an inner recess of mind and spirit). On the contrary: Early in his opinion, Justice Neil Gorsuch wrote that “we proceed on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.” The Bostock Court thus rejected the extravagant claim that a “transgendered” woman (such as the Bostock plaintiff, who was male) really is a woman, albeit one born in the wrong body.
In fact, the Bostock Court showed almost no interest in the “transgender” condition and said nothing authoritative about it. Nowhere did Gorsuch define the term. All that we know about what the Court thinks “transgender” means is what we can infer from its use of “Aimee” Stephens (the “transgender” plaintiff) as an exemplar. That is not much. The Court never says or hints that Stephens tried to change or modify his male sex. There is not a word in the opinion of hormones or surgery or of medications of any kind. Gorsuch mentions a diagnosis of gender dysphoria. But he never said or implied that it is a necessary predicate to being counted as “transgendered.” The opinion as a whole makes clear that it is not a predicate. Because Stephens was discharged precipitously, we do not even know what Stephens’ interpretation of femininity was, or would have become. All we know is that the plaintiff announced that he was coming out as a woman and was fired for it.
The Bostock Court consistently reported that Stephens (or some other hypothetical “transgender” worker) “identified” as female. Gorsuch also consistently referred to Stephens according to the plaintiff’s expressed “identity” as female. But nowhere did the Court endow this “identity” with any ontological predicates. It was and is subjective, notional and very different from what Bostock recognized to be Stephens’ natal sex.
The Bostock Court was also keenly aware of the potentially revolutionary effects of its holding. Writing for the majority, Justice Gorsuch acknowledged that employers “warn … about consequences that might follow a ruling for the [homosexual and “transgender”] employees. They say, for example, that “sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today.” To all these concerns, the Court replied that “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.’”
Gorsuch acknowledged, too, that “employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.” The Court said: “[N]one 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.”
Of course, sometimes the Court’s professions of narrow-gauge rulings are transparently false, because anyone could see that the rationale at hand sweeps across a wider expanse. Justice Antonin Scalia’s prophetic warning that Lawrence v. Texas would beget same-sex “marriage,” notwithstanding the Court’s express denial of paternity, is a classic example. Not this time. The Court’s Bostock opinion is deeply flawed. It is nonetheless so tightly wed to the language of Title VII and to the Court’s jurisprudence specific to that law that one can reasonably treat it as barren.
Bostock is very different from Roe and Obergefell in three crucial respects.
Roe and Obergefell enacted comprehensive settlements of all pertinent questions. Roe did so by stipulating a trimester-based regulatory framework, replete with a taxonomy of permissible legislative interventions. This detailed schedule was superseded by the Court’s decision in Planned Parenthood v. Casey (1992). Its “undue burden” test for abortion regulations has been contentious ever since and recently reconfigured in June Medical Services (decided two weeks after Bostock). This now-prevailing judicial standard, along with Casey’s affirmation of Roe’s “central holding” that the pregnant woman must always be free to choose a previability abortion, constitutes a new comprehensive settlement. All abortion questions find their way into that decision matrix. By contrast, whether a gender-dysphoric teenage boy must be admitted to the girls’ showers at school is not touched by what Gorsuch described as “the straightforward application” of the “plain and settled meaning” of Title VII.
In Obergefell v. Hodges, the Supreme Court held that a State may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” In other words, “the constellation of benefits that the States have linked to marriage” must be made equally available to same-sex couples. This “same terms and conditions” doctrine was intended to be, and has since become, a universal norm for resolving questions even tangentially related to same-sex “marriage.” But Bostock so conspicuously avoided global pronouncements about “transgender” matters that one best conclude that the avoidance is studious.
In Roe and Obergefell, moreover, the Supreme Court meant to launch revolutions. And the justices did so without facing up to the central philosophical question each case presented. In Roe the Court decreed abortion on demand while declaring that it could not “answer the difficult question of when life begins.” The Court then threw up a lawyer’s pettifog around what the Court called “constitutional” persons, while insisting that it eschewed metaphysics, philosophy, theology and even morality. Nonetheless, the holding of Roe cannot honestly be maintained without either concluding that people do not begin until birth, or that the morality of justified killing is such that it includes a pregnant woman’s decision to abort. The Roe Court faced up to neither. It seems instead to have taken Yogi Berra’s infamous advice to a perplexed traveler: Just keep going this way until you come to a fork in the road. Then take it.
In Obergefell the Court imposed same-sex “marriage” by falsely stating the constitutional tradition already settled the matter. The central claim there was that “four principles and traditions” “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” This ad hoc construction was filled out by serial exploitation of “the Court’s relevant precedents,” “this Court’s jurisprudence” “and this Court’s cases and the Nation’s traditions.” In truth, the Court could only reach the desired conclusion by stamping its own approval on companionate marriage, which Justice Kennedy described as a response to the “universal fear that a lonely person might call out only to find no one there.”
Bostock is mistaken on the law. That mistake does not necessarily depend, though, upon the errant metaphysical proposition that sex is a matter of mind over body. One need not implicitly affirm or suppose anything about metaphysics to talk oneself into going along with the illusion of, say, “Aimee” Stephens. In fact, the most common thoughts about it are therapeutic and moral: that it allays another’s psychological distress to play along and that it is disrespectful not to accede to another’s wishes in matters of personal address. These common thoughts are all mistaken, as is Bostock’s legal reasoning about Title VII. But one can make all of these mistakes consistent with “assum[ing]”, as Gorsuch did, that “Aimee” Stephens is really a man.
A third important contrast between Bostock and Roe as well as Obergefell has to do with religious liberty. Roe said nothing whatsoever about the grave crises of conscience which that holding would, and did, engender. Obergefell included a brief profession of concern about religious liberty, which no one — maybe not even the justices who wrote it — took to be more than a limp gesture. In Bostock, however, Gorsuch noted that “the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions.” “But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.” The Court added a longer and maybe even persuasive answer.
The truth is that we are our bodies. Our bodies are pervasively and forever male and female from the moment of our conception. There is no possibility of changing one’s sex. In most scenarios in which the question of “transgender” comes to the fore — access to restrooms, for example, and in competitive sports, as well as in opposition to “sex-change” surgeries — it is the sexed body, and not the gendered psyche, which is salient to the lawmaker. That is the road map to carry in the continuing contest over what to do about gender-dysphoric persons living in a community which cares about everyone’s genuine well-being.
Gerard V. Bradley is a professor of law at the University of Notre Dame
and was for many years President of the Fellowship of Catholic Scholars.