In this pop-up episode, Independent Women’s Law Center Director Jennifer Braceras and Independent Women’s Forum Senior Policy Analyst Inez Stepman discuss the Supreme Court’s recent ruling in Bostock v. Clayton City, how the Court twisted itself into a pretzel to achieve the outcome, and what the ruling means for women’s sports and the Equal Rights Amendment.
Transcript
Beverly Hallberg:
Hey everyone. It’s Beverly Hallberg welcome to a special pop-up episode of She Thinks, your favorite podcast from the Independent Women’s Forum, where we talk with women and sometimes men about the policy issues that impact you and the people you care about most, enjoy.
Inez:
Welcome to another pop-up episode of She Thinks, the podcast of Independent Women’s Forum. Inez Stepman a senior policy analyst at IWF and joining me today is Jennifer Braceras, the director of the Independent Women’s Law Center. Welcome Jennifer.
Jennifer:
Hey, Inez, good to talk to you.
Inez:
Today, Jennifer and I are going to be chatting about Bostock against Clayton County, the recent ruling in which the Supreme Court held, by a vote of six to three — including the Court’s four left-leaning justices, as well as Justices Gorsuch and Roberts — that an employer who discriminates on the basis of sexual orientation or gender identity has violated Title VII of the Civil Rights Act of 1964, specifically prohibition on sex discrimination. Jennifer, what was the question here that the court was looking at? I think there’s a lot of confusion about what the question presented before the Court actually was.
Jennifer:
Yeah, well, the case is actually three cases that the court consolidated. Two of them involved cases where an employee was fired because of that employee’s sexual orientation. Another, a third case, involved an employee who was born male and transitioned to female and lost his job after he decided to transition. The Court consolidated these cases all together and, as you said, determined that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of those categories. Now, to some people that might sound fair, or that might not sound that controversial, but it’s really important to remember that the question before the Court in these cases was not whether it’s wrong to discriminate against somebody because they’re gay or transgender. It wasn’t whether federal law should outlaw that discrimination or if so, how it should outlaw that discrimination.
Really, the only thing that the Court was being asked to consider was whether the prohibition on sex discrimination in the 1964 act already protects these categories of Americans. It was really a very narrow statutory interpretation question. The Court, I think wrongly, decided that the words, “because of sex” in the statute include “because of sexual orientation” and “because of gender identity” — that you can’t separate the concept of sex from those categories.
Inez:
Well, and as even the Gorsuch opinion admits, right, nobody in the 1960s thought that the public meaning of those words, the prohibition “because of sex” included gender identity or sexual orientation. Of course, that’s why Congress has repeatedly brought up the Equality Act, which does specifically include those categories, which is an admission that the act doesn’t include them already. What will the consequences be of redefining the term “because of sex” to include gender identity? I mean, has the Court de facto erased the legal distinction between male and female, or at least the law’s ability to distinguish between males and females and what kind of consequences might this decision have?
Jennifer:
We were very concerned with the potential consequences in this case. That’s why, as you know, IWF filed a brief on behalf of the employers, particularly in the transgender case. Our concern was that if the Court redefined sex to include transgender status, that that would have an impact on a whole host of areas, both within the employment context and outside of the employment context that could adversely impact women and girls. Our primary concern was in the realm of women’s sports, because, as you know, Title IX prohibits discrimination “on the basis of sex” in education. It has very similar language to Title VII. Courts interpret them the same way. A ruling in the employment context would necessarily mean that a transgender, male-bodied athlete could then claim that it was sex discrimination to have an all-female team that that person isn’t allowed to compete on because he’s physically male.
That was our concern. Our concern was that this would ultimately end up taking away roster spots from women and girls, that it would be unfair competition for women and girls, and that, ultimately, it could lead to the elimination of sex-segregated sport altogether, which, frankly, is what I think Justice Gorsuch’s decision did because it really went beyond the concept of transgender identity, because the way that he — you noted earlier when we were speaking that Gorsuch sort of admits that nobody in 1964 thought that because of sex meant because of gender identity. People didn’t even talk about gender identity then. It wasn’t even a thing.
He admits that, but the way he kind of achieves his policy result is by saying, “Look, any time an employer considers the sex of the employee and makes an adverse decision about that person, it’s sex discrimination.”
That really turns anti-discrimination law on its head because it used to be that every court understood that under any federal sex discrimination statute, that discrimination meant treating men and women unequally. It didn’t mean you could never think about whether they were men and women, right? If you have a male bathroom and a female bathroom, you’re not treating them unequally, they have the same space to use the restroom, but you are thinking about their gender in terms of making that distinction. Gorsuch has now said, if sex at all enters the employer or school’s consideration, you violated the law. I’m just waiting for the kid armed with this decision who brings a lawsuit demanding a spot on a division one women’s hockey team.
Inez:
As you said, this takes it, yeah, because it’s almost making this entire question in a weird way of sort of gender identity, it’s making it broader than the questions that we dealt with up until this point. If it’s discrimination on the basis of sex, it’s a discrimination on the basis of sex it seems today. There are so many unanswered questions though, in this Pandora’s box this decision has opened, right?
Jennifer:
Right.
Inez:
I think that the dissent talks about for example religious schools and whether or not they have the right to maintain a staff that agrees with the moral teachings of that religion. Are we going to see like an explosion of religious freedom cases, of RFRA cases going forward? If we are going to litigate all of these questions under RFRA, what about the likes of secular Americans, who for example believe what used to be until about half a second ago, was sort of a universal belief that men and women are biologically distinct. I mean, what do you see the future of litigation under this case looking like?
Jennifer:
The courts are going to be clogged up with this stuff for decades. It’s interesting because Gorsuch says, “Well, no, this is a narrow opinion. It only applies to this context, blah, blah, blah, blah, blah.” Well, these cases might not reach the Supreme Court for a decade (or at all), but they’re going to start to be filed in the lower courts tomorrow. They’re going to affect real people tomorrow. Because as you say, it’s going to affect the rights of religious organizations. It’s going to, as Justice Alito pointed out, raise questions about healthcare coverage based on male and female status. It’s going to affect the First Amendment and people’s rights to express views that, as you noted, five minutes ago were perfectly acceptable views. It’s going to have an impact across sectors, housing, education, athletics, bathrooms, religious institutions, First Amendment. It’s going to reverberate throughout all sectors of society.
Some people say, “Well, isn’t that just a scare tactic? Isn’t this really not that big a deal?” It actually, I think, is going to have far reaching consequences, not just in terms of what it means to be male and female in America and carving out certain separate spaces for men and women, it also has wide ranging consequences for democracy and American government that are, I think, very disturbing.
Inez:
Yeah. I completely agree. We’re talking about this huge category of essentially public policy, right? The question then becomes not only what is the correct way to balance between the interests of say transgender students on a UC campus and the rights of women and girls to have their own track team, I mean, that is an issue where you’re balancing different public policy issues that seem designed for legislatures, not for the courts. I mean, it wasn’t voters who made this decision. It was ultimately, right, nine justices in black robes. This is going to take yet another huge category of public policy issues out of the hands of American voters, a majority of whom by the way are women and hands them to the court. It really seems, and this trend seems to only accelerate recently.
The space for politics for old fashioned voting and politics seems squashed smaller and smaller between what’s an increasingly aggressive administrative state of alphabet soup name agencies rendering rulings, and issuing regulations and dear colleague letters and the like, and then a federal court system that certainly seems to feel comfortable redefining the law that congress wrote in 1964, for example, like the case that we’re talking about. I mean, where’s the third branch of the federal government? Where is Congress in all of this? Can Congress still amend, for example, Title Seven or Title Nine? I mean, what happened to Congress?
Jennifer:
Well, that’s a big question. I think there’s a lot to unpack there. I would first say, it not only takes things out of the political sphere where they should be resolved, but it also takes things away from, it takes these decisions away from local communities, right? A lot of times — this isn’t, we’re not talking about Jim Crow segregation here — lots of times local communities find ways to accommodate people and sort of strike a balance and everybody’s sort of fine with the resolution without making a federal case out of it. Right? I mean, I give this example all the time that there was a transgender student, well, someone who was born female, who was recruited to Harvard College for the swim team, and she transitioned to male in between the time she was recruited and admitted to Harvard and the time that she got to Harvard.
When this person got to Harvard, she was now a he, and he wanted to swim on the men’s team. Harvard said that was okay, and nobody cared.
Well, why didn’t they care?
Nobody raised an issue about it because this person went from being one of the top swimmers in the league on the women’s side to being one of the worst swimmers in the league on the men’s side. In that case, nobody cared, that’s fine, everybody was okay with it. It wasn’t a big deal.
Now, if it had been the other way around, there would have been, I think, different interests, and it would’ve had to be dealt with a different way. My point is, Harvard just kind of dealt with it. Nobody had any complaints, it was what it was. Now they’re sort of taking away the power of local communities to figure out a solution to the problem. I object to that a lot.
As for Congress’s role, I think Congress should amend these statutes in response to this decision. I think Congress should start by amending Title IX to clearly state that it’s okay to have sports segregated along the lines of biological sex. That if you don’t have sex segregated sports, women are never going to be able to compete with men at that level physically, that’s just science. There are certain areas where men and women are different, and this is one of them. Therefore, we’re going to have separate teams for biological males and biological females. I think Congress should amend the statute to explicitly say so.
Inez:
Well, I agree Congress should definitely be looking into all of that. Actually, I mean, I think this is something that could be politically supported with a quite wide band of the American political spectrum, right? I know you yourself are a mom of an athlete, your daughter’s a college athlete, right? Or a high school athlete, a college athlete.
Jennifer:
One of each.
Inez:
I definitely think that there’s a lot of moms and athletes out there who would certainly support such an amendment to Title IX.
Jennifer:
I mean, look, Martina supports that amendment. She’s been very clear, very supportive of gay and transgender rights, but when it comes to sports she understands the science. Frankly, I would say what the Title IX regulations say now, by the way, is not that schools have to have sex segregated sport, but that they may have sex segregated sport, and they all do. Again, leaving it to local communities sort of decide on a case by case basis. Right?
Another example is at my daughter’s high school, when she was, I forgot, I think a sophomore, they didn’t have a goalie on their field hockey team. Field hockey is, in America, a female sport. In other parts of the world it tends to be played by both sexes, Anyway, they didn’t have a goalie. The only way they could field a team and have a season is if they got this kid who was a boy who played ice hockey, and he was the goalie on the ice hockey team. He volunteered to help them out for the season. Some people objected, but they ended up compromising saying, “Yes, he can play because if he doesn’t play, you’re not going to have a season.” Again, it was a local compromise that was struck to deal with a specific situation without the federal government micromanaging. I think the law should be amended to allow schools to have sex segregated teams, but of course there are always going to be exceptions to the rule.
Inez:
There are exceptions in other contexts as well. This actually brings to mind for me the dear colleague letter that was issued under Title Nine by the Obama administration to K-12 public schools on this exact matter on the accommodation of students who were born one biological sex and claimed to be another. You’re right that top down sort of one size fits all rules often destroy, actually, the kind of solutions and accommodations that could be possible. For in this case, one school actually created a separate changing room. They had a student who, I can’t remember if it was a biological boy who claimed to be a girl or vice versa, but essentially they created for this student an individual changing room so the student would neither use the male or the female locker room, but had his or her own locker room.
That was actually deemed to be a violation that the Justice Department and the justice division of the Education Department issued a decision basically saying, “No, no, no, you can’t accommodate in this way. You have to allow this student to use the locker room that is in accordance with the sex that he or she claims to be.” Which again blew up exactly that kind of civil society, individual level solution that this school had worked out that was basically working for everybody.
Jennifer:
Exactly what I’m talking about, Inez. Sometimes it shouldn’t be so black and white that the rules have to be this way. Sometimes communities can figure these things out on their own in a way that balances the competing interests of everyone involved, both the privacy interests of students, as well as the right of the person who’s transgender to not be in a bathroom where they think that’s not where they belong.
Inez:
We’re talking a bit about these kinds of one size fits all rules, but this case has really brought to mind another issue that you and I both work on at IWF, which is the Equal Rights Amendment, which seems to kind of blow this whole transgender issue out of the water in the sense that theoretically under the ERA, you erase all sex distinctions and you wouldn’t even have to claim to be the opposite biological sex. If a boy wants to run on the girl’s track team, he just says, “You know what, you’re discriminating against me on the basis of my sex because I’m a boy and that’s wrong. I demand a spot on the women’s track team.”
Jennifer:
Yeah. I think it’s really interesting because conservatives for years have made the argument that, if the ERA passes, sex could be interpreted broadly to include really other categories besides male and female. I think a lot of people on the left thought that was alarmist, but don’t you think that this ruling sort of shows that that’s inevitably what would happen if the ERA were to be added to the constitution?
Inez:
It’s so funny, even Phyllis Schlafly towards sort of end of the battle against ERA in the early ’80s, she’d actually moved away from what was then called the potty Wars, right? The claim that the ERA would essentially outlaw single sex restrooms and locker rooms in public schools and in public universities. Now we’re actually grappling with these issues like so many things that the right is told that we’re hysterical, that were on a slippery slope, and we’re engaging in a logical fallacy taking a principle that the left upholds to its logical conclusion. Like so many of those other things now we’re actually having the potty wars, right?
Absolutely. I think this has implications for the Equal Rights Amendment, as of course you and I both have legal backgrounds. We know this, but I think the average American may be less familiar this case, Bostock was adjudicated under a law that Congress passed, right? The 1964 Civil Rights Act. Right? That’s different than enshrining into the constitution. This decision does not enshrine its outcome as part of the constitution. It simply interprets a law that congress passed in both of our interests.
Jennifer:
Right. Which theoretically, Congress could repeal that law tomorrow if it wanted to. I mean, it’s not going to do that, but it could. It could say we don’t agree with the Supreme Court’s interpretation of the law that we passed, so we’re going to amend it and make our meaning clear. Right? I mean, that happens all the time.
Inez:
Yeah. Well, the ERA would foreclose that possibility. Right?
Jennifer:
Exactly.
Inez:
If we were to ratify the ERA, it would take another constitutional amendment, and two thirds of each house of Congress and then 38 States to go ahead and ratify the reversal of that or the amendment to that. Just like we had to overturn prohibition by amendment because it was put into place by amendment. Yeah, I think they really overlap in one very important respect. They both show how many common sense distinctions between men and women the law actually makes that a lot of people, I think, don’t think about because they’re so common sense that we don’t consider them in the sort of a typical parlance versus the term of art in a courtroom. We don’t consider them discrimination. Right? In terms of the legal sense, they are. Like the “potty wars” we were just talking about, right. Like the different men and women’s locker rooms in public schools. Having separate prisons for men and women. Right?
This brings up a key distinction, I think, between discrimination on the basis of race and then discrimination on the basis of sex, right? We don’t admit that any kind of discrimination on the basis of race with the one exception of Affirmative Action is constitutional. Right? We’ll see what happens in Affirmative Action after the 25 years are up.
Jennifer:
They’re almost up, Inez.
Inez:
I know, it’s counting down. Obviously Affirmative Action is a controversial public policy in itself, but that is the single exception, right? That our courts recognize that that laws can distinguish between races for the purpose of rectifying past historical injustice. With sex, the courts allow some other exceptions, right? Exactly like separating men and women in prisons. That’s not constitutional with regard to race. We don’t have prisons for white prisoners and prisons for black prisoners. We put all men together and all females together. This is so common sense we don’t even think of it as a discrimination. But that’s what I see as the real danger in the ERA is moving us from that flexible regime where we can actually take into account the fact that yes, men and women are biologically different and in some small percentage of cases or situations, those differences really matter. In fact, ignoring those differences can put women and girls actually in danger. I really worry that we’re moving more towards the government and states not being able to account for sex in any way, which I think could be very dangerous.
Jennifer:
Right. I agree with you a hundred percent on that. What I think is interesting is oftentimes — one argument that people, you hear people on the left make in favor of the ERA is that it would really just be symbolic, right? That, well, the Court has recognized that the Equal Protection clause covers women, covers all Americans, and that unfair distinctions on the basis of sex are already unconstitutional. The ERA would just be symbolic. But this ruling really tells me that that would not be the case, that this would go much farther than current constitutional doctrine. Could you explain that a little bit for the listeners, because I think that’s a really interesting controversy.
Inez:
Yeah. I mean, I think what this all comes down to is erasing the distinction between women and men. Like we both said, there are plenty of distinctions between women and men that are irrelevant or it would be irrational to distinguish between men and women or discriminate between men and women. For example, with regard to who can get a law degree or who can be an astronaut, right? But there are other situations in which it makes perfect sense to take into account the biological differences between men and women. For example, on the water polo team, right? Men are physically stronger, in the boxing ring it makes perfect sense to distinguish between men and women because men are biologically stronger. In the prison context that I just mentioned, it makes women incredibly vulnerable to put them in with male prisoners. On the front line, so the draft argument is sort of outdated in a way that perhaps it was just beginning to when Phyllis Schlafly made it in the early ’70s.
I think that there is an additional wrinkle to it in our modern context. Now that women can go into combat, it’s still a very small number of women who choose to go into combat. Now, if there’s a draft and we have an ERA, is it fair that the vast majority of women drafted will take safe positions behind the front lines? Or do we have to perfectly balance our front line between men and women, otherwise it’s discrimination if you’re sent to the front line, instead of being assigned to a desk job in the military, is that a discrimination on the basis of sex, right? There’s so many, I mean, Ruth Bader Ginsburg pointed out that she thought that this kind of equality principle would necessitate changing thousands of laws. I think the average voter doesn’t realize how much of this assumption that men and women are different, an assumption that happens to be in accordance with reality, is actually built into our laws and permits us to protect, especially, women and girls in situations where they might be vulnerable.
Jennifer:
I actually wonder whether Justice Gorsuch even understands or even thought about the fact that this opinion was going to sort of upend all of those distinctions, right? I mean, he seems to have convinced himself that this was a very narrow decision based on one statute without really taking the time to think about the fact that if the ERA is added to our constitution, the exact same reasoning that he used in this opinion can and will be used, as you say, to erase any legal distinctions or public policy distinctions between males and females whatsoever. I mean, I can’t believe that that was sort of lost on him, but it seems to have been.
Inez:
Well on that unfortunate note, and ominous note, I should say I think that is about all the time we have for today. If you would like to learn more about the Bostock case, you can check out the law center, [email protected]. If you enjoyed this episode of She Thinks we’d love it if you would leave us a rating or review on iTunes and share this episode on social media. From all of us here at Independent Women’s Forum you’re in control, I think, you think, she thinks.