Gorsuch’s position would either require the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than his or her objective biology. It is telling that Gorsuch is evasive about which of these outcomes is required by his theory.
Justice Neil Gorsuch’s majority opinion claims to apply a simple and straightforward test: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” But he refuses to consider what applying this simple—in reality, simplistic—test actually requires—and not just under Title VII, but under every nondiscrimination law that includes “sex” as a protected category, notably including Title IX. After all, Gorsuch’s argument is an argument about the logic of sex discrimination. Alas, he got that logic wrong. And had he considered what applying it to other cases would require, he might have been forced to reconsider his misguided theory. This mistaken theory of sex discrimination will have far-reaching negative consequences down the road.
Gorsuch argues that whenever sex is a “but-for” cause of a negative employment decision, sex discrimination has occurred. He writes:
If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
And Gorsuch offers examples of how this plays out. Here’s one:
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.
So, under the Gorsuch test, if changing the plaintiff’s sex would change the outcome, then sex discrimination has taken place. To see the concrete implications of such an approach, just look at what Gorsuch’s theory requires: Suppose a female lifeguard is fired because she wears a swimsuit bottom but refuses to wear a top. No doubt, “changing the employee’s sex would have yielded a different choice by the employer” and her sex was a “but-for” cause of the decision. Yet her termination was not sex discrimination provided it held males and females to the same standard: a male lifeguard who exposed private parts would have similarly been fired. That male and female bodies differ—and thus require different swimsuits to prevent exposure—doesn’t amount to discrimination unless one embraces a simplistic theory. And, of course, nothing hinges on whether this lifeguard currently “identifies” as a woman or a man.
Consider another example. Suppose a male employee at a fitness center repeatedly goes into the women’s locker room and is fired. Now it’s true that “changing the employee’s sex would have yielded a different choice by the employer” and that his sex was a “but-for” cause of the decision to fire him. But the negative treatment the employee faced was not sex discrimination provided the employer imposed no double standard for men and women, such as a bathroom policy that imposed the same burden on men and women: each is prevented from entering the opposite sex’s private space. The Supreme Court has embraced a theory of sex discrimination that prevents employers—and schools—from keeping males out of female-only spaces. Either that, or it believes only males with a “transgender status” have the privilege of entering female-only spaces.
There Is a Better Test for Sex Discrimination
Gorsuch’s theory does not test for sex discrimination. To be a case of sex discrimination, sex must not only be a “but-for” cause of differential treatment, but that differential treatment must also entail disadvantageous terms or conditions to which members of only one sex are subjected. The simplistic test that Gorsuch puts forth looks for the “but-for” cause and “negative” treatment, but it doesn’t link the two: it doesn’t look for disadvantages directed at individuals of only one sex. He’s offered half a theory of sex discrimination.
Indeed, far from being an instance of sex discrimination, preventing males from entering women-only private facilities is usually viewed as being required by equal concern and regard for women. Justice Ruth Bader Ginsburg took this point for granted in her majority opinion in United States v. Virginia when she explained that, for the all-male Virginia Military Institute to become coed, it “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.” Moreover, in 1975, when critics argued that the Equal Rights Amendment would require unisex intimate facilities, then-Professor Ruth Bader Ginsburg explained that a ban on sex discrimination would not require such an outcome: “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” An employer who allowed males to enter private women-only facilities could expect a Title VII lawsuit asserting it fostered a hostile work environment for women by allowing their privacy to be violated. But who knows how Justice Gorsuch would now evaluate such a claim.
An approach that looks for sex-based double standards is not only the best reading of the statute. It also fits Supreme Court precedent involving Title VII, as I explain in the Harvard Journal of Law and Public Policy. The Supreme Court unanimously held in Oncale v. Sundowner Offshore Services, Inc. that Title VII requires “neither asexuality nor androgyny.” What it requires is equality and neutrality. It forbids double standards for men and women—policies that disfavor at least some individuals of one sex compared with similarly situated members of the other. The Court in Oncale quoted Justice Ginsburg to explain: “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” This reading by Justice Ginsburg, embraced by the unanimous Court, was sound—unlike the new theory put forth by Gorsuch. And Justice Gorsuch’s opinion ignores altogether Justice Ginsburg’s sound test for sex discrimination.