WHY THE HARRIS SUPREME COURT DECISION IS NOT A WIN FOR WOMEN, NOR IS IT NARROW: We've seen people celebrating the Stephens v. Harris SC opinion (sub nom Bostock), asserting it was decided on narrow grounds and preserved the biological meaning of sex. Here’s why we disagree. 1/
We stated in our brief in Harris and elsewhere that discrimination based on homosexuality is discrim. based on sex. This thread is primarily about our opposition to “transgender status” established in Harris, and we refer to the decision as “Harris” to make that distinction. 2/
THE COURT’S REASONING ON TRANS IS EXTREMELY BROAD AND VAGUE: “[I]t is impossible to discriminate against a person for being... or transgender without discriminating against that individual based on sex.” To characterize this as limited is more aspirational than it is rational. 3/
THE DECISION IS NOT BASED ON NONCONFORMITY. It’s based on whether people “identify as” “transgender,” meaning you're male but “identify as” female or vice versa. P. 23. The Court gives no clue WHY “identifying as” a sex you’re not deserves any official status whatsoever. 4/
THE COURT’S STATEMENT ABOUT SEX IS NONBINDING DICTA. Obiter dicta is a "judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential ([but] it may be considered persuasive)." Black's LawDict. 5/
...Employer argued sex is only the biological distinction between male and female; Stephens argued sex encompasses "norms concerning gender identity." But ultimately the Court said: "nothing in our approach to these cases turns on the outcome of the parties’ debate." (p.5) 6/
...Lower courts are thus free to define sex as a matter of "identity." Nothing in the Sup. Ct. opinion discourages or prohibits this, because it explicitly marked its "assumption" that sex "refer[s] only to biological distinctions between male and female" as nonbinding dicta. 7/
THE COURT’S STATEMENT ABOUT SEX IS THEREFORE TOOTHLESS. At the same time, even if a lower court defines sex accurately as the distinction between male and female, it can't disregard the Sup. Ct. holding that "being transgender"/"transgender status" merits legal recognition. 8/
THE COURT’S REASONING IS FIRMLY GROUNDED IN STEREOTYPES. The only clues the Court gives of what "transgender status" means are (1) superficial gender-roles and stereotypes concerning physical presentation, and (2) identification (which is circular and explains nothing). 9/
THE COURT RULED IT'S DISCRIMINATORY NOT TO TREAT A MAN AS A WOMAN under sex-based policies if he "identifies as transgender." Stephens "wrote a letter [saying he] planned to 'live and work... as a woman.'" His employer saw this as "a man dressed up as a woman." (6 Cir. p.40) 10/
....US courts have upheld sex-based dress codes. Media and ACLU lawyers falsely implied that Stephens brought a challenge to the legality of dress codes. But the Sup. Ct. confirmed this is false: they never attempted to argue all men should be allowed to wear dresses. (p. 31) 11/
ONLY BY PRESERVING THE “WOMAN” STEREOTYPE CAN MEN CLAIM TO “LIVE AS WOMEN” OR “IDENTIFY AS TRANSGENDER.” If sex stereotypes did not exist, Stephens would have no grounds on which to "identify as" a woman. 12/
...Women must still comply with dress codes even if restrictive and sexualized. Jepperson v. Harrah's, 9th Cir. 2006. Likewise the Sup. Ct. embraces gendered expectations: a man can “live...as a woman” if he "presents as" a woman, by following the women's dress code. (P.3,15) 13/
...Some commenters claim lower courts can't ignore sex in questions about female-only intimate spaces or athletics. There is no such mandate in the Harris opinion. All we know is that employers must grant some exemptions from sex-based rules if he claims transgender identity. 14/
THE OPINION IMPLIES SEX AT LEAST SOMETIMES IS DETERMINED BY IDENTITY. It cites uncritically the concept of a man "living as a woman," and "identif[ying] as female" by "presenting as" a woman via clothing. This is the only clue it gives to what "being transgender" means. 15/
…Thus, the Court declared men can undertake "traits or actions" as minimal as fashion choice, which enable him to "identify as female." The court may not have blurted out "Aimee Stephens is a woman" but nothing stops lower courts from taking that leap. 16/
THE HARRIS RULING EQUATES APPLES & ORANGES. The expectation a man is heterosexual is a stereotype about his sex w. no bearing on job performance or conditions. P. 9-10. But sex (whether you’re male or female) is NOT a mere stereotype, and it DOES bear on job conditions. 17/
…This is why Title VII allows "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 USC 2000e-2. Examples upheld include treating sexually abused kids, janitors (showers) & ob-gyn nursing. 18/
…Further, being homosexual or bisexual is a fact about one’s desire and behavior; employers do not participate in it. But under Harris, "being transgender" or "living as a woman" requires employers, coworkers, & customers to participate in someone's identity. 19/
...Some claim the Ct. said nothing about what Title VII requires employers to do to recognize an employee's "transgender status." Yet we know, at a minimum, an employee has a Title VII claim unless employer lets him dress in female-typical clothes and refers to him as woman. 20/
EVEN IF THE RULING CAN BE DESCRIBED AS LIMITED, IT WILL HAVE FAR-REACHING EFFECTS. The court chose not to decide related issues but lower courts need not wait. They'll decide issues citing the language in the majority opinion, which is extremely stark. 21/
…Issues already bubbling up from lower courts, state laws, and agency regulations include bona fide occupational qualifications, women's athletics, women's prisons, women's shelters, and bathroom and shower access. Now all must somehow recognize "transgender status." 22/
...It is not uncommon for the Supreme Court to issue opinions that confuse the lower courts and wreak havoc for years, sometimes over a decade, before someone convinces the Court it needs to step in and stop the bleeding. Meanwhile women and girls will lose privacy & rights. 23/
We certainly hope our predictions turn out to be wrong. For more, please watch three of WoLF’s board members discussing our concerns about the “transgender status” Harris decision. 24/24
