Kai-man KWAN
(Professor, Department of Religion & Philosophy, Hong Kong Baptist University; Chairman, Hong Kong Sex Culture Society)

【中文版文，按此】

The Surprising Judgment

As part of US’s landmark Civil Rights Act of 1964, Title VII prohibits employment discrimination “because of” various characteristics including race, color, religion, sex, or national origin. There are three cases in dispute in various levels of the US courts: two involve alleged discrimination against employees because of their sexual orientation; another involves alleged discrimination against an employee because of her gender identity. The question before the US Supreme Court is whether these cases should be covered by Title VII of Civil Rights Act.

On June 15, 2020, a 6-3 ruling from the US Supreme Court says that the 1964 Civil Rights Act’s legal prohibition of discrimination on the basis of “sex” (understood as being male or female all the time before) now equally applies to homosexuality and even transgenderism. Effectively it is giving special protection in employment to gays, lesbians and the so-called “transgendered.” The majority judgment is supported by two “conservative” justices appointed by Republican presidents, Neil Gorsuch & Chief Justice John Roberts, together with the court’s four liberal justices. Gorsuch writes the majority judgment (hereafter MJ). The three dissenting justices are Samuel Alito, Clarence Thomas & Brett Kavanaugh. The leftwing media is hailing the majority decision as a stunning and landmark decision, but even many people on the left, not to mention the conservatives, are surprised by this Bostock judgment. [1]

Justice Gorsuch says, “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids” (2).

In this essay, I am going to evaluate Gorsuch’s major arguments for the above claim. To make the discussions less clumsy, I will make use of some acronyms as below:

• MJ=majority judgment
• DBOS= discrimination because of sex
• DBOSO= discrimination because of sexual orientation
• DBOGI= discrimination because of gender identity
• NET= necessary entailment thesis [Necessarily, if DBOSO or DBOGI, then DBOS.]
• DCT= distinct concepts thesis [the concepts of sex, homosexuality & transgender status are different concepts]

In the following discussions, I will focus on Gorsuch’s argument concerning sexual orientation. Since his argument concerning gender identity is structurally identical, my critique below would equally apply to Gorsuch’s argument concerning gender identity. Here I would first like to dispel a common misunderstanding of the MJ. Its major thesis is NET rather than the claim that the concept of sex includes the concepts of homosexuality & transgender status. In fact, MJ upholds DCT: “homosexuality & transgender status are distinct concepts from sex” (Gorsuch, 19). We also need to clarify the purpose of this essay: we are not discussing whether legislations like Sexual Orientation or Gender identity Discrimination Ordinances are justified or not;[2] we only want to explain why we think it is problematic to create such legislations through the “interpretation” of Title VII.

Evaluation of Gorsuch’s Major Argument

Gorsuch in fact agrees with the dissenting justices that the “Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of enactment” (4). He further maintains that “only the words on the page constitute the law,” & hence we can ignore “extratextual sources & our own imaginations” because “people have the right to continue relying on the original meaning of the law’ (4). So in contrast with the dissenting justices, the MJ pays not much attention to legislative history or underlying purposes of Title VII.

After explaining his approach, Gorsuch goes on to determine the meanings of the terms in the phrase “discrimination because of sex.” He concedes that “sex” here refers to biological sex (5). When he explains “because of,” he points out that “events have multiple but-for causes” (5). Suppose events E1, E2, & E3 happened before another event En, & E1, E2, & E3 are all possible causes of En. Further assume that if E1 did not happen, En would not happen either. But the same cannot be said about E2 & E3. In this case, we can say that only E1, & not E2 or E3, is a but-for cause of En. In other words, we can also say that En happened because of E1. Based on this analysis, Gorsuch proposes this “straightforward” rule to test the applicability of Title VII concerning DBOS: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” This can be confirmed “if changing the employee’s sex would have yielded a different choice by the employer- a statutory violation has occurred” in this situation (9).

Gorsuch’s contention is that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” (9). In other words, “When an employer fires an employee for being homosexual or transgender, it necessarily & intentionally discriminates against that individual in part because of sex” (14). Call this thesis NET. To prove this, Gorsuch considers “an employer with two employees, both of whom are attracted to men. The individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague” (9-10; emphasis mine).

Then Gorsuch concludes, “the employer intentionally singles out an employee to fire based in part on the employee’s sex, & the affected employee’s sex is a but-for cause of his discharge” (10). A similar argument is made to show that for transgender employees, DBOGI entails DBOS (10). To sum up, “homosexuality & transgender status are inextricably bound up with sex” (10), & thereby NET is vindicated.

Is this argument successful? I think not. In fact Justice Alito has already provided a convincing rebuttal of this case (Alito, p. 15).[3] It is important to note that in deciding whether E1 is a but-for cause, we need to keep all other relevant factors constant. Otherwise we cannot be certain that the change in outcome is due to the absence or change in E1 & NOT due to other factors which have also been changed. That is why Gorsuch needs to say that the two “individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman.” But this is false, & hence MJ’s “but-for” argument fails. It is because as the sex of the employee changes, the employee’s sexual orientation will also change. As Alito points out, “in the mind of an employer who does not want to employ individuals who are attracted to members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material”- their sexual orientations. Because in that case, those 2 employees “differ in two ways- sex & sexual orientation… We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex” (Alito, 15). So this case does not demonstrate NET.

In fact it is possible to distinguish DBOS from DBOSO by looking at the decisions of the employer in all 4 possible scenarios:

1. Man attracted to men
2. Woman attracted to men
3. Woman attracted to women
4. Man attracted to women

If the employer would only dismiss the 1^st & 3^rd cases (homosexuals) but not the 2^nd & 4^th cases, then “the employer’s real objection” is to homosexual orientation rather than the sex of the employer or his/her lover (Alito, 16). If the employer intends to discriminate because of sex, the pattern of discrimination would not be as above. Gorsuch cannot argue that both DBOSO & DBOS are the causes because they produce different patterns of discrimination behavior & they lead to different predictions of the employer’s actions. In this case we can conclude that DBOSO rather than DBOS is the real motive. So “the Court’s textual arguments fail on their own terms…  And to say that the Court’s interpretation is the only possible reading is indefensible” (Alito, 17).

Justice Alito’s Counter-argument against NET

Besides rebutting Gorsuch’s major argument for NET, Alito also proposes an Argument from Lack of Knowledge of Biological Sex to disprove NET. (He believes that MJ’s NET “is demonstrably untrue” (8).) He argues, DBOSO or DBOGI (such as “a blanket policy against hiring gays, lesbians & transgender individuals”) is “quite possible … without taking the sex of an individual applicant or employee into account” (9). But “if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex” (9). This is because “a disparate treatment case requires proof of intent- i.e., that the employee’s sex motivated the firing” (10). Hence, NET is false.

We can clarify the logical structure of this argument. [If p, then q.] means that not-possible[p & not-q]. So if it is possible[p & not-q], then it is false to say that if p, then q. The application to the current question is as follows:

• NET means that not possible[DBOSO & not-DBOS].
• It is possible to discriminate against an individual because of his/her sexual orientation without knowing his/her sex at all.
• It is impossible to discriminate against an individual because of his/her sex without knowing his/her sex.
• Hence, it is possible to discriminate against an individual because of his/her sexual orientation without discrimination against an individual because of his/her sex.
• In other words, it is possible[DBOSO & not-DBOS].
• So NET is false.

MJ has tried to respond to this argument by considering the “black or Catholic case”: “Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not…the employer violates the law whatever he might know or not know about individual applicants” (Gorsuch, 18).

But Alito correctly points out, “How this hypothetical proves the Court’s point is a mystery… Rejecting applicants who checked a box indicating that they are homosexuals is entirely different because it is impossible to tell from that answer whether an applicant is male or female” (10). In Gorsuch’s hypothetical case, we can be sure that no matter what one’s identity is, it would violate Title VII because discrimination because of either race or religion is prohibited.

Gorsuch’s Defense: Discrimination Because of Sex In Part Is Already Sufficient

Gorsuch wants to argue that as long as sex is part of the reasons for discrimination, the existence of other factors is simply irrelevant (10). “When an employer fires an employee because she is homosexual or transgender, 2 causal factors may be in play- both the individual’s sex & something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care” (Gorsuch, 11). So “additional causes” of discrimination do not really matter (Gorsuch, 11).

I think this defense also does not work. Gorsuch’s argument may appear plausible only because sexual orientation is a compound concept constituted by 2 components which are both about sex. But the result is not caused by either component but by the relationship between these 2 components (whether they are identical or different). This phenomenon is common in science.

When light travels from a medium with refractive index n1 to another medium with refractive index n2, the light will either bend towards or away from the normal. If the light will bend towards the normal, it is because of the fact that refractive index n2 is bigger than refractive index n1. But refractive index is a compound concept depending on the ratio between sin i & sin r (where i= angle of incidence, & r= angle of refraction). So the bending towards the normal, although in some sense related to either i or r, is not really caused by the angles of incidence or refraction, but is solely caused by the relative values of the refractive indices. We cannot say that the bending of the light is caused by the angle of incidence or angle of refraction, not even in part. Similarly, although DBOSO may conceptually involve sex as a component of the concept of sexual orientation, it does not mean that an action motivated by DBOSO is also motivated by DBOS, not even in part.

Gorsuch has committed an error similar to the fallacy of division. It is mistaken to argue that since the whole has a certain property p, then the parts of that whole also have p. For example, although sodium chloride (table salt) is edible, it is not justified to conclude that its constituent elements, sodium and chlorine, are also edible; they are not! Similarly, if the employer’s discrimination against the employee is entirely based on a bias against his/her sexual orientation, i.e., based on the relationship between 2 variables (the sex of the employee & the sex of his/her lover), the discrimination is not really caused by those two variables considered independently. Therefore, we cannot really say that the discrimination is based on those 2 variables, not even in part.

Gorsuch’s argument only applies when an employer, say, dislikes both females & homosexuals, & he fires a lesbian employee BOTH because of her sex & sexual orientation (cases IV & V below). This indeed is discrimination in part because of sex. Gorsuch loves to talk about “the confluence of two factors, his [the employee’s] sex and the sex to which he is attracted” (21). The language suggests that Gorsuch is considering the combination of 2 independent factors at work which do not have intrinsic relationship with one another. But homosexuality is not a combination of 2 independent factors but a logical relationship between those 2 factors! These two kinds of case are not really comparable. Gorsuch’s failure to appreciate this point may explain the source of his confusion.

Consider 4 kinds of employee: straight male; straight female; homosexual male; homosexual female. See the patterns of discrimination resulted from different kinds of discrimination:

	People fired	people not fired
I) DBOS (vs males)	straight male; homosexual male;	straight female; homosexual female
II) DBOS (vs females)	straight female; homosexual female	straight male; homosexual male;
III) DBOSO	homosexual male; homosexual female	straight male; straight female;
IV) DBOS (vs males) +DBOSO	straight male; homosexual male; homosexual female	straight female;
V) DBOS (vs females) +DBOSO	straight female; homosexual male; homosexual female	straight male;

Title VII will prohibit (I), (II), (IV) & (V), as Gorsuch suggests, but not (III).

Conclusion

There are also other weighty criticisms of the Majority Judgment such as the argument from the original or ordinary meaning of “sex” in Title VII, MJ being an unacceptable act of judicial activism which violates democracy, the promotion of extreme transgenderism which ignores reality, various kind of negative impact, being unfair to religious or conservative people & neglecting of religious liberty & so on. I do think that some of these criticisms are quite convincing, but there is no need to argue this point here. (Please see other articles from the HK Sex Culture Society website.)

The reason is that the major argument of Gorsuch evaluated here is in fact the only direct argument for his conclusion. He also tries to support his conclusion by appealing to 3 Court cases: Phillips v. Martin Marietta Corp. (1971); Los Angeles Dept. of Water & Power v. Manhart (1978); Oncale v. Sundowner Offshore Services, Inc. (1998). We cannot go into the details here (see Alito’s explanation of the cases on pages 36-37), but in fact all these cases do not touch on NET. At most they show that Title VII may have some unexpected results. Even if it is true, it does not show that NET really follows from “the straightforward application of legal terms with plain & settled meanings” (Gorsuch, 12). Not to mention Gorsuch’s really astounding claim that “no ambiguity exists about” his interpretation of Title VII (24). In addition to this, Gorsuch mainly tries to reply to criticisms in Section III (pp. 15-33). So if the arguments here are correct, the only direct argument for the MJ is unsound, fallacious & hardly convincing. It also means that the Bostock judgment is not really justified.

If this is the case, then we can understand Justice Alito’s harsh criticisms of the MJ: it is “in the form of a judicial opinion interpreting a statute, but that is deceptive” (1). Therefore, the Court is “usurping the constitutional authority of the other branches… A more brazen abuse of our authority to interpret statutes is hard to recall’ (3). Alito also compares the MJ to “pirate ship” (3) & accuses them of “arrogance” (6). I personally think that the MJ may well deserve these criticisms.

 

[1] Bostock v. Clayton County, Georgia 590 U.S. ___ (2020), https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf.

[2] Debates about Sexual Orientation or Gender identity Discrimination Ordinances (SODO or SOGIDO) are complicated, & we disapprove of unreasonable discrimination against homosexuals or transgender people. However, after considering all the arguments, we think that SODO or SOGIDO on balance may do more harm than good (please refer to many articles in SCS’s website). To solve this problem through non-legislative means like education seems to be a better solution.

[3] Alito’s dissent opinion is joined by Justice Thomas.