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Supreme Court justice Neil Gorsuch.Eric Thayer / Getty Images

August 14, 2020 (Population Research Institute) — It hasn’t even been two months since the Supreme Court’s Bostock v. Clayton County decision, and already its disastrous consequences are becoming clear.

Bostock was decided this past June on a 6-3 majority with so-called “conservative” Justices Neil Gorsuch and John Roberts siding with the liberal wing of the court to redefine “sex” under Title VII of the Civil Rights Act of 1964 to include “sexual orientation” and “gender identity” — concepts never mentioned in the law nor intended by Congress when the law was passed over 50 years ago.

Bostock held that it is a violation of Title VII for an employer to fire an individual because they are gay, lesbian, or transgender because, according to the Supreme Court, such somehow constitutes discrimination on the basis of sex. This despite the fact that “sex” and “sexual orientation” and “gender identity” are entirely distinct concepts.

The attorneys representing the employers seeking relief in Bostock warned the court that redefining “sex” to mean “sexual orientation” and “gender identity” would have far-reaching unintended consequences and they warned that such a redefinition of “sex” would make it legally unsustainable to maintain single-sex restrooms, locker rooms, and dress codes.

Now we have proof that they were right.

Last Friday, the 11th Circuit Court of Appeals ruled that it is unconstitutional for public schools to maintain single-sex restrooms because doing so is “discriminatory” towards persons who are deluded into thinking they are a different sex than their biological sex.

The 11th Circuit’s decision in Drew Adams v. School Board of St. John’s County, Florida ruled that the St. John’s County school board had violated Title IX of the Education Amendments of 1972 and equal protection rights under the Fourteenth Amendment when it told a young woman, Miss Adams, that she could not use the boy’s restroom in school. Miss Adams “self-identifies” as a boy.

The John’s County school board had a countywide policy not unlike virtually every other school district in the nation which requires all students to use only public restrooms that corresponded to their biological sex. If students did not want to use a restroom corresponding to their biological sex, the St. John’s County school board gave students the option of using a private gender-neutral restroom instead.

The school board took no issue with allowing Adams to present as a boy in school and the board was fine with Miss Adams dressing like a boy, was fine addressing her with male pronouns, with her receiving male hormones and birth control to stop her periods, and with her having had a double mastectomy to appear more masculine.

In short, the school board had no issue with treating Adams as a transgender student and had no issue acquiescing to her every desire for the school to affirm her in her deluded false belief that she was a boy.

Because Adams had not undergone sex reassignment surgery, the school had just asked that she not use the boy’s restroom. She had the option of using the girl’s restroom or using a gender-neutral restroom if that did not suit her preferences.

But that wasn’t enough for Miss Adams, her mother Erika Adams Kasper, and their legal counsel. According to the 11th Circuit Court’s summary of the facts surrounding the case, Adams considered this common-sense arrangement to use a private restroom to be “humiliating” and “insult[ing].”

As a result, they sued the school board in federal court. The U.S. District Court for the Middle District of Florida found the school board in violation of the Fourteenth Amendment and Title IX of the Education Amendments of 1972. The 11th Circuit agreed and upheld the district court’s ruling.

What this ruling means is that all public schools, libraries, and charter or private schools that receive federal funding from the Department of Education in the states of Georgia, Florida, and Alabama now must allow boys who think they are girls to use girl’s restrooms and locker rooms if they merely change a birth certificate or driver’s license to reflect their gender preference. And in most states, changing one’s gender on a driver’s license or birth certificate is not very difficult to do.

Public schools and schools receiving federal funding in Georgia, Florida, and Alabama will now be forced to allow students to use whatever restroom corresponds to the sex they want to identify with. This directive carries the force of federal law and will extend to public universities in these states as well.

Having actually undergone sex reassignment surgery is not required for a student to use a restroom reserved for the opposite biological sex. All that is required is for a boy to “think” he is a girl, and to have his driver’s license or birth certificate changed to read “female.” He would then be able to use the girl’s restroom and locker room even though he has male external genitalia. I don’t have to explain why this would be highly problematic for any woman or girl who wishes to use a public restroom or locker room at a public school.

If you object to the fact that your son or daughter may now be exposed at young age to seeing exposed genitalia or other private parts of the opposite sex, too bad. If you’re worried about what might happen when teenage hormones encounter nakedness, go away. As a mere parent you no longer have any legal standing.

In fact, we should not be surprised if sometime in the not-so-distant future we learn that a parent has been taken to court and accused of discrimination for daring to complain to school authorities that a transgender boy is using the same locker room as their daughter. Given the 11th Circuit’s ruling, whose side do you think the court would favor?

The potential for not only psychological discomfort but actual trauma for students is real. There are many good reasons why restrooms are single-sex only facilities and those reasons do not change or go away simply because someone who is transgender enters the room. The new arrangement should be unacceptable for any parent or for any person charged with the care and safety of young people. 

And while trans activists vehemently insist that no groping or sexual contact could ever ever result from a transgender youth using a restroom or locker room of the opposite biological sex, such claims defy both common sense and recent experience.

For one, transgenders are generally likely to be attracted to persons of the opposite biological sex. That is to say, there is a reasonably good chance that they are attracted to members of the sex they believe they are a part of (i.e. the sex they are in the locker room with). And they are far more likely than the general population to be bisexual. According to the 2015 U.S. Transgender Survey, nearly one-third of transgender survey respondents self-identified as bisexual or pansexual.

But maintaining single-biological-sex-only restrooms doesn’t just make sense for the rest of us, it makes sense for protecting youth who identify as transgender as well. Studies have shown that a shockingly high percentage of transgender individuals are sexually assaulted or forced into sex against their will.

According to the U.S. Department of Justice, Office for Victims of Crime, about one out of every two transgender individuals is sexually abused or assaulted at some point during their lifetimes. Put a vulnerable young transgender girl who is “transitioning” to male in a boy’s locker room and if those boys happen to be less than moral, you’re just asking for trouble.

The bitter irony of the 11th Circuit Court’s decision is that the Supreme Court in Bostock specifically avoided the bathroom issue because, according to the Supreme Court, the Bostock case was not about bathroom usage.

During oral arguments in the Bostock case, both “conservative” Justices Roberts and Gorsuch appeared concerned that their ruling could have implications for single-sex restrooms. They both asked probing questions of the attorneys on the bathroom issue. But there the matter ended. In the end, both decided to punt on the issue, apparently content to let these issues sort themselves out in future cases.

Now, not even two months later, the sheer recklessness of their approach is now apparent to all.

The Drew Adams case is not the first nor only case in federal court to rule that single-biological-sex restrooms in public schools are a violation of Title IX’s nondiscrimination statutes. Shockingly, the Ninth, Seventh, and Fourth Circuit Courts of Appeals have also issued similar rulings. However, the 11th Circuit’s ruling is the first to rely on the Supreme Court’s ruling in Bostock.

Given that several circuit courts have now taken a stance on this highly controversial issue, the Supreme Court may feel pressed to address the issue.

When this happens, the key question is: What will Gorsuch do? His reasoning in Bostock will leave him hard-pressed to find a textualist solution that keeps biological-sex-only restrooms intact.

Gorsuch and the majority reasoned that firing a gay, lesbian, or transgender person because of their sexual orientation or gender identity violated Title VII’s prohibition on discrimination on the basis of sex. They asserted this because, as they claimed, the concepts of sexual orientation and gender identity necessarily encompass the notion of sex as a prerequisite.

Traditionally, the Supreme Court has used a simple ‘but-for causation test’ to determine what is considered discrimination on the basis of sex under Title VII. A but-for causation test simply asks: ‘if not for X, would Y have occurred?’ In other words, if a person’s sex were removed from the equation, would the employer’s action (e.g. hiring, firing, promotion, raise, etc.) have remained the same? For example, if a male employee is given a raise, would the raise in that situation still be given if the man were instead a woman?

With but-for causation, it is sufficient to show that sex was only part of the reason for the employer’s action.

In Bostock, Gorsuch claimed that firing a gay person because he is gay meets the but-for causation test because if that man (who is attracted to men) had instead been a woman, he would not have been fired.

But Gorsuch’s reasoning is ridiculous. A gay man is not fired because he is a man but because he is gay and there is nothing about homosexuality that is inherent to the essence of the male sex. And just because you can’t understand what it means for someone to be gay without knowing first what it means to be male and female, that does not mean that sex is a but-for cause of his firing. The two are distinct concepts.

For example, you can’t understand the concept of color preference without first understanding discrimination on the basis of color. But saying that firing Bob simply because he had a strong preference for the color yellow constitutes discrimination on the basis of color under Title VII is clearly ridiculous.

Gorsuch’s reasoning (or lack thereof) falls into even greater logical traps on the question of gender identity because a person’s sex cannot change regardless of what they do to themselves hormonally or surgically. A person’s DNA will always be either male or female. A transgender person is not discriminated against because he is a woman because he never was a woman in the first place. And if you say that he is discriminated against because he is dressing like a woman or has the physical appearance of a woman, then sex-specific company dress codes and single-sex restrooms must necessarily go out the window — which I believe is hardly the position Gorsuch was willing to take given his willful avoidance of these topics.

And what about bisexual persons? If an employer fires a man for being bisexual, the action the employer takes is not dependent on the sex of the employee because the employer would have done the same thing if it were a bisexual woman in question. Thus, under Gorsuch’s reasoning it is impossible to give bisexuals the same protections under existing statutes as (according to him) can be afforded to gays, lesbians, and transgenders under current federal nondiscrimination law. But surely, no one would think it fair or logical that the law protects gays and lesbians from discrimination and not bisexuals. Thus, it is easy to see how Gorsuch’s reasoning framework has inherent logical gaps and contradictions.

It is well-known that but-for causation tests are inherently susceptible to specious causation and over-causation. This is precisely the reason why many state courts have largely abandoned using this test in other areas of law, opting instead for more rigorous methods. In order for a but-for causation test to work, it must be firmly rooted in reality. Otherwise we might attribute the fact that an employee showed up to work that day (instead of taking a vacation day) as a but-for cause for him getting a promotion — because after all, he wouldn’t have gotten the promotion if he hadn’t showed up to work that day.

A simple reality check on causality would have (or should have) alerted Gorsuch and the Supreme Court majority to the fact that being gay and one’s sex are logically distinct concepts and that causality between the two is a specious one. But because of Gorsuch’s blind rigorous adherence to textualism, he was unable to analyze the concepts in this case properly within their context.

This is not what Justice Antonin Scalia would have done. Scalia was an originalist, not a strict textualist. He recognized that laws must be interpreted in light of the original intent with which they were written and he always rooted his decisions in reality.

In Bostock, the Supreme Court has set up a logic trap for itself that its members will have a hard time climbing out of if they intend to save the legality of something as common-sense as single-biological-sex restroom policies. The easiest way to do this would be to overturn Bostock, but I’m not holding my breath.

Bostock has made clear that, from now on, Senate confirmation hearings must apply a litmus test for all Supreme Court nominees. No longer can we trust generic promises and broad assurances from the nominee that they will faithfully interpret the Constitution as written, or that they will adhere to the doctrine of stare decisis. We need clear and explicit commitments from nominees on exactly how they will vote on deeply controversial issues of paramount importance such as abortion, gender identity, and religious liberty.

I don’t know about you, but I’m sick and tired of the Senate approving one “conservative” justice after another who, once confirmed, joins with the liberal justices on the Supreme Court to issue rulings that violate both reason and common sense. The liberal wing of the Supreme Court, on the other hand, consistently and predictably votes in lockstep on the social issues that matter to them.

Published with permission from the Population Research Institute.