What is “being transgender” after Bostock?

The Supreme Court’s majority decision in the Bostock case was great news for LGB people. WoLF agrees that employment discrimination on the basis of sexual orientation is wrong, and we celebrate that part of the decision. The Court’s ruling on “transgender status” however, is a disaster for women.

A number of people have claimed that the ruling in Harris Funeral Homes (issued in same order as the Bostock case) was good because it upheld a biological definition of sex or because it made it illegal to fire a man for wearing a dress.

The ruling did neither of those things. 

Others have said that the ruling only protects people from being fired for “being transgender,” and that it won’t affect women’s rights. 

No one who has taken any of these positions has explained what “being transgender” means, or stated clearly what it meant to the Court’s majority, using the opinion itself. 

The Consolidation of the Cases and the Questions Presented

The consolidation of these three cases for argument and decision was a bad omen of what came next.  Sexual orientation is a fundamentally different type of category than “transgender status” or “gender identity.” The Court should never have conflated the two for purposes of Title VII analysis. Like the unquestioning addition of “T” to “LGB” in activist discourse, this conflation enabled gender activists to ride on the coattails of another class of people whose status is determined by a material state of being.

Likewise, the Court’s setting of the Questions Presented tied the parties to a concept that, at least in the case of Harris Funeral Homes, was fiercely disputed: 

“Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender, or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).”

When the Supreme Court grants a petition for certiorari, it can define and limit the questions it intends to address. The parties cannot ignore or evade the Question Presented, they must do their best to argue it while staying true to their position. Here Harris Funeral Home expressly contested the Court’s framing of the issue as involving “transgender status,” noting that only Congress can establish a new classification under Title VII: 

“. . . Stephens alleges no [conduct on the part of his employer] that treats an employee of one sex less favorably than employees of the other sex and that does so because of sex. Instead, Stephens is trying to add a new classification altogether—transgender status—which Stephens argues is determined in part by sex. Stephens Br. 23. But that legislative addition is something only Congress can do.”

But the damage had been done. The Court had telegraphed its intention to frame the issue as being about the “status of transgender,” and that is what it did. 

The Definition Of Sex

Much has been made of the court defining sex in the biological sense — as if there were any other kind — as being the basis for sex discrimination. The Court’s statement about sex, however, is what’s called nonbinding “dicta.”

Obiter dicta is a “judicial comment made while delivering a judicial opinion, but one that is ​unnecessary to the decision in the case​ and therefore not precedential (although it may be considered persuasive).” –Black’s Law Dictionary (emphasis added).

The Court’s statement about what sex means is dicta. It is not binding on future lower federal courts.

The employer argued that sex is only the biological distinction between male and female; Stephens argued that sex encompasses “norms concerning gender identity.” And ultimately the Court said: “nothing in our approach to these cases turns on the outcome of the parties’ debate.” Again: the answer to whether sex is biological only or involves “norms concerning gender identity” was unnecessary to the decision. 

Lower courts are thus free to define sex to include “norms concerning gender identity,” or similar. Many Circuit courts have ​already ​ done so. Nothing in the Supreme Court’s opinion discourages or prohibits this, because it explicitly marked its “assumption” that sex “refer[s] only to biological distinctions between male and female” as nonbinding dicta.

The Court’s statement about what sex means is therefore toothless. Even if a lower court tries to define sex accurately as the distinction between male and female, it can’t disregard the Supreme Court holding that “being transgender”/”transgender status” merits legal recognition.:

“An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” (P. 9)

That statement is breathtakingly broad. Bear in mind that “employment decisions” include things like employees’ use of women’s facilities such as bathrooms and showers, as well as staffing decisions for sensitive tasks like sponge-bathing a physically helpless woman or counseling a rape survivor, many of which fall under the Title VII exception for bona fide occupational qualifications.

There already are, and will be more, lawsuits filed by people who claim “transgender status” to challenge sex-based employment decisions made because of their actual sex rather than their “gender identity.” In each of those cases, the Court’s reasoning will back them up: “it is impossible to discriminate against a person for being. . . transgender without discriminating against that individual based on sex.” 

Employers Can Still Fire a Man for Wearing a Dress

As the law currently stands, sex-specific dress codes are legal if they are suitable to the industry and applied evenly, even if they require a different type of garments for men and women respectively. Hence, if a man chooses to defy the dress code by wearing the skirt suit required of his female colleagues, he can be fired because he refused to follow the terms of his employment that apply to him and all his male colleagues.

Unless that man says that he wants to “live as a woman,” or “identifies as a female,” or is recognized for some reason as “being transgender” or having “transgender status.” Now, an employer may not fire the same man as long as he identifies as “transgender,” but must instead treat him comparably to his female colleagues.

At base, Aimee Stephens declared his intent to violate the terms of his employment, which included a sex-based dress code and appropriate restroom use. His employer fired him because he was in violation of the terms of his employment as a male, which he was. The Court has said that the employer was wrong to treat Stephens like the rest of the men, because he had a “transgender status,” which is nowhere defined.

So the Court didn’t rule that men can’t be fired for dressing like their female colleagues. They ruled that if a male employee “identifies as a female,” then that man must be treated comparably to his female colleagues. They said:

“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.”

If they had meant to say that male employees can’t be fired for “traits or actions” tolerated in female employees, they could have said that. They didn’t. Instead, they said that a “transgender person” who’s male can’t be fired for such traits or actions.

If they had meant to say that you can’t fire a man for wearing a dress, they could have. They didn’t.  Instead they said this:

What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today.  But none 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. 

The majority here insists that they don’t see their decision as necessarily affecting all of these other sorts of cases where sex-based rules apply. But what they’ve said elsewhere in the decision is that if a man “identifies as” female, you have to take him at his word, and treat him as such.

The Court has insisted that they didn’t make any change to the legality of sex-based dress codes. Yet they ruled that if a man makes a claim to be a sex that everyone knows he is not, that claim overrides the lawful rules that bind his male coworkers.

Many people are insisting that we take the justices at their word that this decision is “narrow,” while at the same time wanting to believe that the justices meant the exact opposite of their stated intent. Given the extremely broad and vague nature of “transgender status,” as the Court has conceived it, we can’t bring ourselves to share in this level of optimism. 

Sex-based dress codes weren’t on trial in this ruling. The definition of sex was on trial, and the court decided to punt that one by creating a massive loophole in it on the basis of “transgender status,” which they have nowhere defined.

Sex-based dress codes may yet fall, but they haven’t yet. Rather, a man was posthumously granted the right to say he was a woman, all evidence to the contrary, and have that claim treated as materially true by his employer and the law.

What Is “Being Transgender”?

The majority decision used the terms “being transgender,” “transgender person,” or “transgender status,” to describe this new protected class of people who can make false claims and expect society to treat them as legally binding truths.

What makes someone transgender? In the decision, the justices mentioned various thoughts and assertions, such as a man wanting to “live as a woman,” or a man who says he “identifies as a female.” These actions seem associated with “transgender status,” but are nowhere described as necessary conditions.

How does a person obtain or qualify for “transgender status”? The majority opinion in Bostock doesn’t say.

If this class isn’t necessarily defined by behavior or some other material condition, it functions more like a philosophical or religious belief. Some beliefs are protected under the law, but when those beliefs are used to request exemptions from ordinary rules, some sort of proof is usually required. 

The justices have given considerably less thought to what qualifies someone for an exemption from ordinary civil rights law than the military has given to conscientious objection​ to military service. If there were a draft, a man registered for Selective Service couldn’t just show up to say that he didn’t want to go, and be affirmed by authorities as someone with deep philosophical or faith objections to war.  He would be required to appear before a board, which would examine how he arrived at his beliefs and how his beliefs influence the way he lives his life. A similar process applies to prisoners who claim exemptions from otherwise applicable rules based on religious belief. But with “transgender status,” the Court gave no clue as to what qualifications one must meet, if any, to demonstrate the validity of their claim to hold that status..

It’s further  worth wondering whether those same authorities would be required to let a draftee go if he had “identified as a woman,” when women were still exempt from the draft. 

Claiming a transgender identity is very different from the usual sorts of faith claims that the courts ordinarily consider. It’s also different from claims about same-sex attraction, where nearly everyone agrees on the actions that constitute being lesbian, gay, or bisexual.

A “transgender” identity, as it has surfaced in numerous discrimination cases brought by organizations like the ACLU, GLAAD, or the NCLR, is about making a claim over what other people are required to do or believe.

Aimee Stephens was not fired from Harris Funeral Homes because he wished to believe, in the privacy of his own mind, that he was a woman. He was fired because he wrote to his employer declaring his intent to violate the dress code for male employees, and he wanted to require everyone at his workplace to go along with his belief about himself.

The only time “being transgender” comes up in law and policy is when a person wants to say that they’re a sex that they aren’t, and they want exemptions from the ordinary rules for their sex. It comes up when people wish to force others around them to act contrary to the truth about their sex.

The UK child transition charity, Mermaids, recently wrote to John Cleese on Twitter, after Cleese wondered if he could just declare himself a woman, to say, “A point to bear in mind is that you wouldn’t do that, because (unless we are mistaken) you are not transgender. Much of this is based on the myth that men spuriously self-identify as women. It doesn’t happen.”

Even this claim that men wouldn’t “spuriously” identify as women has to be qualified (“unless we are mistaken”), because, in fact, John Cleese would ​ be as entitled as any other man to say that he was a woman. If he did, it’s certain that gender activists would start referring to him as such from that point forward, and this would be just as spurious, or not, as any other such claim. 

Stated differently, a claim to hold a particular status can only be dismissed as spurious if the status itself has a definition that enables a judge to distinguish objectively between spurious and non-spurious claims. 

What Mermaids is trading on, like what the Supreme Court asserted without explanation, is a popular assumption that the term “transgender” means something objective in the same way that it means something objective to be Catholic, or to be a US citizen, or to have a certain ethnic ancestry. It’s so popular to believe that this is a clear, meaningful category, that even ​many feminists critical of the effects of gender identity​ policy believe in it.

This decision strengthens the idea that “transgender” is a category that can be defined, without reference to sex stereotypes, on some basis other than actions — actions that inevitably include asking other people to agree to falsehoods — and that the group of people making gender identity claims can be legally recognized as a coherent group, and recognized without causing harm to others.

In practice, the Court’s refusal to offer a definition aside, and the circular nature of gender identity definitions in state law aside, a claim of discrimination on the basis of gender identity is always based on actions that violate ordinary standards of behavior and make unusual claims of others. Other people may be required to remember and use inaccurate pronouns. Other people may be required to give up their physical privacy. Other people may be required to falsify records, or make false statements. Other people may be required to say that a shelter, program, or opportunity, is for women, and then let men access it, but continue to lie and say that it’s only for women.

A claim to gender identity is a claim that everyone else must stay in their sex-based boxes, but you get to pick yours, and all of these other, more boring people, must go along with it.

A man who wanted to challenge sex-based dress codes on the basis that he wanted to wear dresses would have gone about things completely differently. A man like that might have won greater freedom of action for all of his fellow men, while respecting sex, and without claiming a special status in comparison to his peers. Instead, what we got was a man who thought that he was more special than other men, that he was “transgender,” and deserved special treatment. The Court went along with it.

So while the Court said that they hadn’t decided on other sex-based rules, lower courts facing discrimination suits by people claiming to be transgender are quite likely to use the court’s ruling in deciding them. What kinds of cases are being brought? In every case, it’s about a person asking to violate ordinary sex-based rules that everyone else generally agrees to abide by.

Consider the case of a male student in Illinois who wanted to change with the girls at school, on the basis of his claim to a female gender identity. Nova Maday ​won a discrimination suit​ filed against his high school in 2017, earlier this year. In Maday’s quest for this exemption from the rules for other male students, his right to “identify as”  a sex he wasn’t, he ran roughshod over the interests of female students who didn’t want to ​undress in front of a boy​.

Everyone involved in the Maday case knew that Maday was male. 

Yet the decision of the school board to end girls’ privacy last year, or of school officials to settle what they must have felt was a losing court case, was unaffected by this knowledge. It wasn’t enough that he was known to be male. What happened is that he claimed to have a gender identity contrary to his sex, and on the basis of this other category, which isn’t sex, male students are going to be granted access to the female students’ changing rooms.

If all the other court cases on gender identity claims are decided on the basis that sex can be disregarded on the strength of a claim to “transgender status,” and it now appears that they must,  then the entire U.S. judiciary could dismantle decades worth of women’s organizing victories in a very short space of time.

Everyone in the Gender Industrial Complex is Going To Keep Being Themselves

The history of adding “gender identity” to the law has been a long process of gender activists taking advantage of people’s sympathy.

These categories are nowhere well-defined in US law, except in those few states where the definition in the law is still one that pertains to someone with a medical diagnosis of sex dysphoria, who wishes to undergo extreme cosmetic body modification. In those few places, gender activists have sought to have this definition struck down, saying that it amounts to ​forced sterilization​.

That is, the legal recognition that transsexuals sought decades ago, for an extremely rare psychological condition, has been redefined by this iteration of gender identity politics as a crime against humanity.

In the UK, the Equality Act created a defined process for getting a gender recognition certificate, which granted some exemptions for a few people, but still allowed for single-sex spaces. Gender identity pressure groups used this to badger government institutions and local authorities into acting as though self-identification of sex were already the law. They got away with this for years, and some of their school guidance materials are only now being rolled back by organized parent actions.

In Canada, Bill C-16 was touted as only adding gender identity to the country’s anti-discrimination law, to protect people from unfair treatment. It’s been used as a cudgel against free speech, a license for a male pervert to try and force his (naked) company on women and girls, and to grant male murderers and child molesters the right to be incarcerated with women.

 Everywhere they’ve appeared, vague, supposedly narrow anti-discrimination policies that introduce the concept of “gender identity” or “transgender” recognition into the law have been used to erode the rights and safety of women. Lawmakers tend to be either poorly informed or wantonly uncaring of the consequences to women and girls,  while gender activists always press for total acceptance of gender identity claims. 

The US “gender identity” movement is going to continue to work for, and sue for, full self-identification of sex, which the ​Bostock ​ ruling allows, in all of the areas that the Court insisted their ruling was too “narrow” to decide on. The movement will almost certainly use the language of this case to claim that it’s sex discrimination to say that a trans-identified person must follow the otherwise lawful rules that apply to other members of their own sex. If the recent history of such cases in the lower courts holds into the future, the consequences of this decision could be very grave.

This is speculative, of course, and does not constitute legal advice. But it’s concerning that so many people who are ordinarily aware of the harms of accepting gender identity falsehoods into the law are happily letting their guards down, as if the Supreme Court has revealed itself to be on their side. It hasn’t.