Commentary by Daniel Horowitz | June 16, 2020
When Anthony Kennedy discovered a right to force states to redefine marriage in the 2015 Obergefell case, he promised that religious liberty would remain untouched. “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered,” wrote the former justice for the majority at the time.
Thanks to Justice Gorsuch’s contorted reading of the word “sex” in anti-discrimination law, you now have a right to sue for protection for biological traits you do not possess. This means that legitimate rights of others will now have to yield. Anyone who can’t see the devastating real-world effects of this decision – well beyond firing someone simply because you hate their private behavior – is clearly not paying attention.
Codifying into anti-discrimination law the concept that a man who says he is a woman must be treated according to his mental illness is not something we can live with as a society. Gorsuch might want to dismiss the earth-shattering ramifications of his opinion, but he knows well that there are already pending lawsuits to demand that men be treated as women, in very dangerous or disruptive ways that go well beyond trying to use the boot of government to stamp out mean or discriminatory behavior.
Here is an outline of some of the most immediate threats from this decision. These are not hypothetical societal and legal problems; these issues are in contention as we speak and have now been decided by this court.
Forcing states and doctors to perform castrations
Forcing employers to retain gay employees and not fire them simply because of their private behavior sounds very innocuous and even laudatory. But what about forcing doctors to perform “sex change” operations and forcing states to fund them? Codifying the desires of someone afflicted with gender dysphoria into sex-based anti-discrimination law will force states and hospitals to treat anyone who believes they are really the opposite gender as that preferred gender.
In fact, the Supreme Court has already tacitly mandated this. In May, justices declined to take Idaho’s appeal from the Ninth Circuit, where the lower court ordered the state to pay for a castration surgery for a male serving time in Idaho prison for sexually abusing a 15-year-old boy.
Similarly, a federal judge in Wisconsin mandated that the Badger State use its Medicaid funding to pay for “gender confirmation” mutilations, which can include castration, mastectomies, hysterectomies, genital reconstruction, and breast augmentation.
Those radical decisions will now be backed up in all circuits. There are already numerous lawsuits suing employers to provide castration and hormone procedures under the employer health insurance mandate of Obamacare. Obamacare uses civil rights laws to bar discrimination in offering health care coverage. It would be easy for the courts to now apply Gorsuch’s interpretation of Title VII to other areas of discrimination in the ACA statute.
Will Gorsuch be there for us to overturn those decisions?
Women’s bathrooms, locker rooms, and all-female sports
Barring a male who says he is a female from an all-girls sports team, bathroom, or locker room now constitutes sex-based discrimination. Title IX of the Education Amendments of 1972 reads as follows:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
It’s not even a jump to apply this ruling to that law; it’s a logical outgrowth. All separate gender school activities and private dressing rooms are out the window because the 1972 law, which liberals already felt included transgenderism, will now be so interpreted.
As Justice Alito warns, similar lawsuits may be brought under the Fair Housing Act against colleges that have separate dorms for males and females. Also, female prisoners will be subjected to males living with them. Again, once sex is redefined, it is no longer limited to employment or animus-based discrimination. As Alito warned, “The Court … argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. According to the Court, the text is unambiguous.” This wasn’t even a close call for the majority, and it will therefore reverberate across all areas of law, politics, and society.
Religious schools must become pagan
We were told not to worry about Obergefell creating a right to gay marriage because it was merely an issue of a marriage certificate and would never affect private religious institutions. Well, what happens now if a cross-dresser or a prominent homosexual activist wants to teach in a Catholic, Orthodox Jewish, or Muslim school? The majority opinion blithely denied these concerns and noted how title VII protects religious liberty by offering some long-standing exceptions. However, those exceptions have been interpreted more and more narrowly as time goes on. The same way Gorsuch has evolved on the definition of a sex, the courts are evolving on religious protections, and the former will now accelerate the latter.
What about pedophilia, nudity, and the next frontier in our “evolving” society?
Justice Gorsuch dismissed (p. 30-32) the dissent’s charge that he was backfilling into the statute ideas that its crafters would regard as absurd and immoral as “naked policy appeals” and as complaints about “undesirable policy consequences.”
What happens when the next letters of the alphabet get codified into the sacrilege of the sexual behavior legal protections, such as “N” for nudity and “P” for pedophilia?
“My sexual orientation is to be with children.”
“My sexual orientation is to express myself freely and be proud of my body, not to hide it.”
You might laugh, but at the speed with which transgenderism became in vogue, there is nothing stopping more sexual fetishes from joining the quasi “legal” distinction with a fancy acronym. The mainstreaming of pedophilia is already under way. Could employers still not fire those individuals for being disruptive to the decorum of the office the same way they can’t fire a man who walks in one day dressed like a woman, even if he has to deal with clients? Those ideals can be read into the word “sex” of a 1964 statute just as much as transgenderism can. After all, gay expanded to LGB and T, and then an undefined “Q” got added in. Others add on IAPK to include “intersex, asexual, pansexual, and kink.” It has broadly become known in those circles as “LGBTQ+.”
So, Justice Gorsuch, now that man and woman no longer mean what they mean, can you tell us what is and is not included in “sex” and why there should be protection for some fetishes or mental disorders over others? Can we lay down that marker now so that it doesn’t grow?
Freedom of speech
As Justice Alito warned in his dissent, the New York City government has already made it a criminal offense not to address someone by his or her preferred pronoun.
“After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination,” wrote Alito.
Supporters of this decision claim that because the court did not create a constitutional right, merely a retroactive reinterpretation of statue, Congress is still free to legislate. But who are we kidding here? The Civil Rights Act is as politically untouchable as the Fourteenth Amendment, and there is no way Congress will have the guts to deal with this fallout. State legislatures will be cut out from the process entirely.
Also, as Alito warns, the jump from codifying transgenderism into statute to into the Constitution is nothing more than a hiccup for its supporters to overcome, and the court has consistently done that in the past. There are already numerous cases percolating in the lower courts to do just that. Once the lower courts codify a new right, we have seen the Supreme Court first ignore the lower court radicalization and then downright legitimize it.
Yesterday, Mitch McConnell didn’t even mention this travesty in his press briefing. Trump bizarrely commented, “they ruled and we live with their decision” and called it a “very powerful decision.”
Very powerful, indeed. Now who will stand up for the forgotten Americans and use separation of powers to push back against this travesty?
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.