Redefinition and changing perceptions have been key to the Left’s success in recent decades, and especially with the sexual revolution. Morality, marriage, and now the very definition of “man” and “woman” have been challenged, yet the final result seems to be not liberation, but destruction. This was well illustrated in the debate of lawyers covered in an earlier article concerning the Supreme Court authorizing self-defined sex. Held at the Jones Day law firm on September 16, Amy Howe of SCOTUSblog moderated the discussion between John Bursch of the Alliance Defending Freedom (arguing against redefinition), and Brian Burgess of Goodwin Law arguing in favor.
Howe observed that Justice Kagan has said “we’re all textualists now … Both sides are looking at the text and saying the text clearly supports me.” How do we determine “original public meaning?” Bursch maintained that the “original public meaning does apply at the time of enactment.” The court is composed of originalists and textualists who are not inclined to look at history subsequent to enactment “to determine what the meaning was at the time of its [i.e., the law’s] enactment.” Congress did change Title VII of the Civil Rights Act of 1964 in 1991, he noted, but rulings by lower courts since 1964 have said that the original act did not include transgenderism. These rulings were not altered by Congress, which could have amended the Civil Rights Act of 1964. What we can discern from that is that “Congress intended” that the Civil Rights Act of 1964 not include transgenderism. He said that “Congress has considered and rejected 12 separate times proposed amendments to add transgender status to Title VII.” Some legislation specifically includes transgender status as a civil rights category, so legislatures’ action or lack of action with respect to what civil rights categories there are do have meaning.
Regarding the claim that transgenderism is inherently sexual because it is sex linked, he said that this would mean that sex segregated accommodations “have to go.” He said that there is no argument to the contrary advanced by advocates of sexual orientation and gender identity (SOGI) categories. The very concept of sex is eradicated as discriminatory, “male” and “female” become only words, making even homosexuality unidentifiable. If “transgender” is accepted as a protected category, sex disappears, and any sex based claim cannot be objectively identified (because sex is inherently biological, and if it can’t legally be, then the can be no sex based claim). “Sex” is something else in law, perhaps just a word to get whatever one wants.
Burgess appealed to the public’s rejection of racial discrimination to say that LGBT discrimination, particularly with respect to the “T,” is never justified. He said that if Bursch’s logic were accepted, individuals involved in an interracial marriage could be discriminated against, since a difference in race is the reason for an adverse decision (i.e., discrimination), although the particular races involved is unknown. Bursch responded that in that case, it is clear that the discriminatory action is based on “racist reasons,” but when the Civil Rights Act of 1964 was passed, it was understood that there should be sexually segregated rest rooms, but there should not be racially segregated rest rooms. He observed that if sex is self-defined, then authorities cannot use a person’s anatomy in determining who may conduct a strip down search. He said that while advocates of transgenderism have said that sex is not self-defined, it must be self-defined if the legally binding identification of a person’s sex is “malleable.” He also noted that the Supreme Court has clearly said that the legal definition of sex discrimination is “disparate treatment between men and women.” Mere refusal to accept a person’s sexual self-definition is not sex discrimination, he said.
Howe asked whether or not “what Congress had in mind” in 1964 should be important in reaching a conclusion on the cases before the court. She referred to an opinion of Justice Scalia in defending a Supreme Court decision which ruled that same sex harassment is illegal sex harassment, just as much as the opposite sex harassment which was clearly prohibited by legislators. Scalia had said that “it doesn’t so much matter what Congress had in mind as what the words on the page are.”
Burgess said that Scalia’s quote was important in emphasizing the difference between what the legislators who enacted a law thought the law was about, and what it reasonably means. He said that “statutory provisions … [can] go in directions that were not anticipated by the legislature.” Bursch responded that in opposite sex harassment, a woman “is being treated less favorably than men at the place of work.” This is not precisely the case with same sex harassment, but even to talk about same sex harassment involves a traditional understanding of sex as based on biology. There is in fact a situation of disparate treatment even here, Bursch said, because the person who is the object of same sex harassment is being treated less favorably than a person of the opposite sex would have been. Justice Scalia was thus in fact “applying the original public meaning” of the law in analyzing both opposite sex and same sex harassment.
Howe referred again to the Price Waterhouse case, mentioned in the previous article covering this debate. This case, which involved a female employee of Price Waterhouse who argued that she had been treated less favorably because she did not look and act the way the employer felt was appropriate to her sex, established that “sex stereotyping” is in some cases an actionable form of sex discrimination.
Bursch maintained that “Price Waterhouse was not really a case about sex stereotyping.” He said it was about shifting the burden of proof. He also noted that “the opinion was a plurality of the court, not a majority.” He noted in particular that “it did not establish an independent cause of action for sex stereotyping.” He also emphasized, that even in Price Waterhouse, sex discrimination (which in this case involves sex stereotyping) must involve disparate treatment. Because a woman was punished (i.e., passed over for promotion) for the same traits that would be rewarded in men, the “sex stereotyping” against her was illegal. In the current case with Harris funeral home, there is no sex discrimination (i.e., a man is required to dress as a man just as a woman is required to dress as a woman). Rather, the definition of sex is being changed to say that the man involved is a woman because he says he is.
Burgess asked if Bursch was holding that requiring men and women to act in ways the sexes are traditionally thought to act is not sex discrimination. Bursch said that in this case there is no sex discrimination, because a woman wishing to dress as a man would have been treated in exactly the same way by Harris Funeral Homes as the man, Stevens, who wanted to dress as a woman. There is no disparate treatment between the sexes, which “is the lynchpin of the analysis.”
Howe asked if the Price Waterhouse case could be used to get a very narrow ruling. Burgess responded that “it’s mostly a ‘yes/no’ question” of whether sex discrimination can be proved on the basis of the employer’s use of traditional sex characteristics in making employment decisions. Bursch said that the most reasonable thing is to apply “the original public meaning of the statute.” He noted that Justice Ruth Bader Ginsburg has “spent her entire career” working for women’s equality. But “if you can re-write the meaning of a federal statute” so that men can be legally treated as women, it will “destroy everything” that she worked for. Transgenderism represents “existential threat” to the doctrine of women’s equality, Bursch believes.
Howe asked what should “we be looking for at the oral arguments?” Burgess said “framing” is very important, and “reveals a lot about … how a justice is coming at issues.” He said that Chief Justice Roberts was asking a lot of questions about redefining sex, which he believed bodes well for the plaintiff in this case. Bursch advised “don’t tune out” after the first hour of argument. The court will be considering sexual orientation as well as transgenderism in the consolidated cases it will consider, and the court may not consider the cases “in exactly the same way.”
It seems to this writer that Burgess is correct that the important issue is “framing.” Transgenderism must be “framed” correctly to seem plausible to people. As long as the issue focuses on observable physical reality, the argument for transgenderism is hopeless. Transgenderism’s very nature is that you belong to the sex you say you belong to, and that should be legally binding. This also means that one can change one’s sexual designation at any moment, and change it again at any moment. It is thus, by its very nature, “self-defined sexuality.” As such it really abolishes sex, making the words “male” and “female” meaningless terms.
To have any hope of being persuasive, the case must be “framed” as involving an objective reality, transgenderism, which is sex related, and therefore must be accommodated. But the accommodation is to ignore sex in any objective sense, and focus on mental life. Whether or not a society believes in sexual equality, most societies have seen the need to somehow protect women, and historic feminism did this by holding the separation of the sexes as necessary to put women on a more equal footing. By asserting mental life rather than physical reality to be most important, “transgenderism” claims that it is only appealing to equality. The unreflective member of the public, especially receiving information from a pro-transgender media, will believe that “transgender man,” is a real kind of man, not (what she really is) a woman claiming to be a man, while “transgender woman” is a real kind of woman, not (what he really is) a man claiming to be a woman.
The folly that so threatens society is finally based on the claim that people are entitled to live in the reality they want, instead of being bound to live in a reality they should accommodate to. The Left’s leading idea of liberation has overwhelmed its grip on reality. Everyone cannot have the reality they want. If desire is the final criterion of justice, then there must be favored persons. And today they are those the Left identifies as victims, in this case, people who refuse sexual reality at a most basic level. They are thus believed to be the ones entitled to the reality they want, and the new tyrants of our day.