A man and a woman both show up to the same workplace on the same day. They are dressed identically, in the same dress and same high heels. You wouldn’t send home the woman dressing as a woman. So then, it must follow, or so argues Supreme Court Justice Neil Gorsuch, that the boss who objects when a man dresses this way is discriminating, not based on behavior or comportment, but based on his sex.
This is the essence of Gorsuch’s reasoning in Bostock v. Clayton County. The justice controversially conflates the ideas of “sex,” “sexual orientation,” and “gender identity,” as if these were equivalent to one another. They are not, but now they will be identical in the increasingly tangled mess of employment law.
One of the cases at the heart of this decision originated in 2015, when the longtime male employee of a family-run funeral home informed his employer that he was going to start dressing and presenting as a woman while dealing with clients, family members of the deceased. The employer, feeling entitled to some measure of control over how his business interacts with grieving customers, resisted.
Gorsuch, in branding this employer as not just wrong but impermissibly discriminatory, has turned employers’ demand for certain norms of dress and conduct at work into a crime rooted in animus. Gorsuch is right to admit in his ruling that Congress never intended this. His error is in thinking he found a loophole no one else noticed for 56 years.
Congress could, at any time, make it a federal crime to discriminate based on gender identity and sexual orientation. It hasn’t. Perhaps it would have done. But now Gorsuch, along with Chief Justice John Roberts and the court’s four liberal justices, have done it instead.
Title VII of the Civil Rights Act of 1964 forbids discrimination based on “sex,” full stop. It doesn’t address any issues of sexual practice or gender self-identification. Nor would it have passed Congress in 1964 if it had tried to do so. In other words, no one ever agreed to what these judges are now imposing.
Lawmakers chose their language carefully. It bars discriminatory practices once commonly used against women, such as firing women for getting pregnant or blocking their advancement in favor of less-qualified men. The plain language also forbids discrimination against men for being men.
What the law doesn’t do, but the Supreme Court does, is assert that men and women can have equal rights only if we pretend there are no meaningful differences between the sexes.
Gorsuch’s premise is wrong. Men and women are naturally different, in profound ways. These differences would persist in a world of full legal equality. We say this not based upon religious belief, but upon political, biological, cultural, and legal realities that no amount of casuistry can erase.
The survival of civilization, and even the human species, depends upon the difference between males and females. The importance of sex differences also extends into daily interactions that suffuse every workplace as a reminder that men and women are not interchangeable.
Understanding sex differences has been a major part of making the workplace more amenable to women. Thoughtful employers accommodate these differences in a thousand ways. An employer who refuses to provide a clean and private place for a new mother to pump breast milk deserves to be scorned. An employer who fails to provide female employees with appropriate private space may have a hard time retaining them. An employer who insists on making pregnant women lift heavy things could even be sued. And let’s not even get into air conditioning.
These are just a few of the more superficial differences. Thousands of lawsuits and legal settlements each year testify to differences big and small. It should be enough to note that male employees who talk specifically about women co-workers in certain ways, or who talk to them in certain other ways, get fired.
The belief that men and women are different is not some bigoted, bygone attitude or something we have to be ashamed of. It is a fact, and an essential part of being human. A man and a woman may wear the same outfit, but that doesn’t make them the same.
