Hadley Arkes: Let’s remember the constitutional role played by the political branches in the past, liberal and conservative, to narrow and counter court decisions.
n my previous column (“The Ebbing of Truth”), I was bracing for the decision that the Supreme Court was about to hand down in a case on transgenderism (Harris Funeral Homes v. EEOC and Bostock v. Clayton County). Some of us were girding our loins for a shock of seismic force because there had been rumors, now proven so regrettably true, that Justice Neil Gorsuch would defect from the conservative side.
The man who was appointed, with high fanfare, to take the place of Justice Scalia would now make the decisive vote, and write the opinion, in a case that promises to disfigure our laws and our lives, much in the way that Roe v. Wade has worked to remake the culture.
If the schools now begin to instruct the young on the even newer, liberated culture set before them, the youngsters may be given now to wonder just how stable are the differences that really distinguish their mothers from their fathers – or themselves, from their brothers and sisters. As Michael Hanby, David Crawford and Maggie McCarthy argued, this case may well have brought, as C.S. Lewis had it, “the abolition of man” – and woman.
The case involved Anthony Stephens, who had been working at the Harris Funeral Homes in Michigan for several years before he informed his employers that he wished to “live and work fully as a woman.” In his opinion for the Court, Justice Gorsuch referred to Stephens as “Aimee” and used feminine pronouns at every point.
Gorsuch remarked that “Aimee” had “presented as a male” when “she first got the job.” From the outset, Gorsuch absorbed the predicate of Stephens’ claim: that in his own understanding, he had in fact become a woman.
Michael Hanby and his colleagues correctly noted that the issue was not the freedom of Stephens to present himself as a woman. To confirm Stephens’ argument was to confirm the obligation of all people around him to respect that claim and treat him as though he were indeed a woman. If they didn’t affirm that lie, they and their employers could be charged with sustaining a “hostile work environment.”
Some of my friends, reading the case closely, insist that Gorsuch never actually affirmed that Stephens had indeed altered his sex, in the strictest understanding of sex, as the objective differences in the ways our bodies are organized for the function of reproduction.
On the surface, that reading of Gorsuch may look and sound plausible. But I think we can show, with an even closer reading, that this offers, as the saying goes, a “metaphysic without consequence.” That reading will do nothing to dislodge the judgment in this case, and I think it comes apart the closer we look.
Gorsuch remarked that his judgment did not reach the matter of bathrooms and locker rooms, for those situations were not contained in the case at hand. But Justice Alito quickly pointed out that the holding had been, after all, that it was wrong to turn away from anyone – to withhold a job or a benefit – because of an aversion to a person’s sexual choice of changing genders. That judgment would presumptively apply to all instances of that discrimination, and indeed the first case has already been pressed on the side of a transgendered high-school girl, seeking admission to a boys’ bathroom.
In the meantime, some of the new, young conservative federal judges may be able to use these cases to resist the sweep of this new principle. They hope then to induce the Supreme Court to take a sober, second look.
Congress could also make it clear again that the Civil Rights Acts do not bar all-female colleges, and it might deal as well then with female teams and locker rooms. The Trump Administration has already acted in its own sphere – e.g., in denying access of transgendered women to “women’s shelters.” It’s time to remind ourselves of the constitutional role played by the political branches in the past, liberal and conservative, to narrow and counter decisions of the courts.
Gorsuch did not have to say anything conclusive on that question of whether Stephens had in fact become a woman. He could simply use his alchemy of “textualism,” working on the Civil Rights Act of 1964, and settle on this limited point: that if Stephens came to regard himself as a woman, that is an understanding that the rest of us are obliged to respect when it comes to “discrimination on the basis of sex.”
But that may also be the key to explain why it will mean nothing in the end to note that Gorsuch had not exactly said that Stephens had changed his biological sex. My friend Gerard Bradley distilled things in this way: In the biological sciences, “sex is binary, innate, and immutable.” And it goes beyond anatomical differences to penetrate to the level of cells.
But “gender identity,” as he says, “denotes a fluid belief system based on cultural constructs, emotion, experiences.”
Gorsuch and the Court can preserve their detachment on the question of whether a man can become a woman only if they simply ignore that inescapable, objective truth of what constitutes “sex.” To admit that truth is to turn the decision into gibberish. For if the meaning of “sex” was indeed so inescapably true, no one could be obliged to respect Stephens’ claim to be regarded as a woman.
The deeper irony is that this truth, as a truth, no more comes into sight for the conservative critics of this decision than it does for Gorsuch and his colleagues. It may be the understanding of “sex” contained in the statutes and in accord with the dictionaries of 1964. But that truth would be there even if the statutes and the dictionaries had said something else.
And conservatives have not counted the ignoring of this truth as the deepest wrong in this decision. For the melancholy fact is that the appeal to anchoring moral truths has long been ruled out of what has been taken, in our own day, as “conservative jurisprudence.”