The James Wilson Foundation on Natural Rights and the American Founding

“The Supreme Court’s Mistaken and Misguided Sex Discrimination Ruling”: Ryan Anderson in Public Discourse

James Wilson Fellowship faculty member Ryan Anderson has offered extensive commentary on Harris Funeral Homes v. EEOC and authored an amicus brief for the case. Following the Supreme Court’s decision on June 15, Dr. Anderson responded in Public Discourse, warning that Justice Gorsuch’s decision either spells the end for sex-specific programs and facilities or ensures that future usage will be defined by subjective gender identity rather than biological sex. Further, Dr. Anderson points out that in binding up gender identity in sex discrimination, Gorsuch implicitly affirms a sex binary that his decision further undermines. Dr. Anderson ultimately calls on Congress to clarify the meaning of “sex” in Title VII of the Civil Rights Act or at the least to provide more robust protections for religious freedom in light of SCOTUS’s new ruling.

Some quotes from the article:

“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.”

“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.”

“It is also noteworthy that Gorsuch uses the phrase “gender identity” once, and not in his own voice. He uses “transgender status” eighteen times. Indeed, his entire opinion rests on a sex binary. What would he say about “gender ambidextrous” or “nonbinary” identities, since these identities have no relation to sex at all? When Gorsuch claims that “transgender status [is] inex­tricably bound up with sex” because  “transgender status” is defined precisely in opposition to sex, he presumes the very sex binary his opinion will help to further erode. How will he argue that a genderfluid or genderqueer identity is “inextricably” bound to sex?”

You can find the whole article here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790