Excellent Critiques of Bostock Ruling

By ED WHELAN

June 25, 2020 9:51 AM

I’ve run across several excellent critiques of Justice Gorsuch’s majority opinion in Bostock v. Clayton County (on top, of course, of the compelling dissents by Justices Alito and Kavanaugh). A non-exhaustive list:

1. In this Law and Liberty essay, law professor John McGinnis, who is very high on, if not at the top of, my list of best constitutional commentators, explains that Gorsuch’s opinion “embraces a desiccated literalism over a common-sense understanding of a text’s public meaning”:

The only way Gorsuch can avoid conceding that Alito’s is a better interpretation is to read the language as a kind of computer code, divorced from the understanding that people would have given to the phrase “discriminate . . . because of the individual’s sex.” …

But this kind of analysis depends on a mistaken understanding of natural language, even specialized legal language. It is emphatically not a computer code. It can only be understood through context. Consider what one of the foremost scholars of the philosophy of language, Scott Soames, says about legal interpretation. He argues that the narrow linguistic (read “literal”) meaning does not fully capture what the legislature “asserts” in a statute. This is not surprising, because linguistic communication always depends on the presuppositions and contexts that a speaker or groups of speakers share with their listeners. Just as in ordinary language, some matters are left unstated, so too in legislation. In this sense, communication in natural language is the opposite of a computer code where nothing is left unstated. To recapture that context, interpreters must be able to take account of matters, such as what problems the legislatures were addressing. Only then can one understand what they were asserting. That is why legal interpreters since Blackstone have warned that interpretation cannot descend into literalism.

2. This Law and Liberty essay by Thomas Ascik observes that Gorsuch’s flawed textualism treats the text of Title VII as “both immutable and mutable” and exposes his empty “reassurances” about “questions for future cases.”

3. On Public Discourse, Ryan Anderson illustrates the absurdity of the test that Gorsuch reads into Title VII:

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.

4. In this Wall Street Journal piece titled “The Abolition of Man and Woman,” David Crawford and Michael Hanby, both professors at the Pontifical John Paul II Institute, argue that Gorsuch “has intervened in a bitterly contested question—a question of philosophy before it is a question of law—and codified a radical new conception of human nature with a dubious ideological history.” The ruling has a “totalitarian character” in that it “requires everyone to live for all public and practical purposes as if what they know to be true in their pre-ideological experience of reality—the knowledge we imbibe with our mother’s milk—were officially false, a ‘stereotype’”:

It is impossible to redefine human nature for only one person. When a fourth-grade girl is required to affirm in thought, word and deed that a boy in her class is now a girl, this does not simply affirm the classmate’s right to self-expression. It calls into question the meaning of “boy” and “girl” as such, thereby also calling into question both her own “identity” and that of everyone in her life, from her mother and father to her brothers and sisters, and all of her friends and relatives. As well it should. If each of us is defined by a “gender identity” only arbitrarily related to our male and female bodies, now relegated to a meaningless biological substrate, then there is no longer any such thing as man or woman. We are all transgender now, even if sex and “gender identity” accidentally coincide in an overwhelming majority of instances.