What is ‘sex’? The Supreme Court must choose between the rule of law and the gender activists

The cases concern Title VII of the Civil Rights Act of 1964, which “prohibits employment discrimination based on race, color, religion, sex and national origin.” The court will decide whether the term “sex” as used there also applies to sexual orientation or gender identity. On one side, you have plaintiffs who say they were discriminated against for their sexual orientation or gender identity, aligned with left-wing activist groups such as the American Civil Liberties Union and the Human Rights Campaign. In opposition, you have the businesses in question, as well as the Department of Justice, which wishes to see the law interpreted as legislators intended and as voters were able to agree to at the time.

In the 1960s, when the Civil Rights Act was written and passed Congress, it’s clear that legislators did not intend it to apply to homosexuality or transgender identity. In the decades since, Congress has repeatedly considered adding explicit protections for sexual orientation and gender identity to anti-discrimination law and decided against doing so. Still, the activist argument that the Supreme Court should discover these protections in existing law by redefining or re-understanding the meaning of sex discrimination is an interesting one and worth parsing out.

The logic goes like this: In a previous case, the Supreme Court ruled that anti-discrimination protections for “sex” also apply to sex stereotyping. They argue that anti-gay discrimination is a form of sex-stereotyping, for instance, you are firing a man for marrying another man when you would not do the same thing to a woman. The argument is similar for gender identity — i.e. a transgender employee fired for wearing a dress is being fired for something the opposite sex would not face punishment for. Thus, they argue, it’s all captured under protections for sex.

While it’s novel and clever, there are a few problems with this argument.

For one, there’s a strong case to be made that laws must be interpreted how they were intended by legislators, not twisted around to discover new meanings and advance a new political agenda, no matter how popular. To find gay or transgender anti-discrimination protections in this law, even though legislators have repeatedly rejected them — and continue to do so — would be to flout the will of Congress and appropriate the legislative branch’s authority via judicial fiat.

Additionally, “sex” is simply not the same thing as sexual orientation, no matter how many times you squint at the law and try to convince yourself otherwise. Sex describes a biological, binary categorization of males and females; sexual orientation is about romantic attraction.

And if someone is fired for being gay, we obviously wouldn’t call that “sexist” — we’d call it “homophobic.” So, too, an employer who fires a transgender person might be “transphobic” or even “cruel,” but that doesn’t make them “sexist” or their deed an act of “sex” discrimination.

Left-wing activists routinely conflate the merits of whether or not gay and transgender people should be protected under anti-discrimination law with whether the question of whether they are included under the law. For instance, when the Trump administration called on the Supreme Court to interpret the law as intended, they were slimed as “anti-LGBT’ by leftist activists. So, too, conservative justices such as Neil Gorsuch are smeared as anti-gay for their approach to interpreting the law, even though they make no comment one way or the other on the political question.

This is a disgrace and a shame. No matter which way the Supreme Court eventually rules on these landmark gay and transgender rights cases, there are legitimate arguments on both sides of the Title VII issue. Despite the hysterical claims that might break out in the liberal press if the court eventually rules against gay and transgender activists, conservatives aren’t bigots for wanting to see the law enforced as it was written and passed.