No one should be fired for being gay or transgender. And now, as a result of the Supreme Court’s recent decision in Bostock v. Clayton County, “an employer who fires an individual merely for being gay or transgender defies the law.” The decision not only has a virtuous outcome: it also shows how the recognition of biological sex, as traditionally understood, can be used to increase protections for sexual minorities. This is significant because the reality of biological sex is under attack. The preferred replacement is “gender identity,” which figures in many state laws prohibiting discrimination against transgender people, and is central to the 2019 Equality Act passed by the House of Representatives (but stalled in the Senate). But gender identity is ill-suited as a basis for non-discrimination protections. Biological sex provides a clearer and better means to the same laudable end.
The Bostock decision turned on the interpretation of Title VII of the 1964 Civil Rights Act, which prohibits hiring or firing because of a person’s “race, color, religion, sex, or national origin.” Title VII says nothing explicit about people who are gay or transgender. However, Justice Gorsuch, writing for the majority, argued that “the straightforward application of legal terms with plain and settled meanings” leads ineluctably to the conclusion that Title VI covers sexual orientation and transgender status too.
The majority’s argument appeals to a simple test for sex discrimination in employment. Suppose Adam, a male, is fired. And suppose the employer would have retained “an otherwise identical employee,” Eve, who is female. Then Adam was fired in part because of his sex, which contravenes Title VII.
Now imagine that Adam is a gay man—that is, Adam is sexually attracted to men. Female Eve is a hypothetical “otherwise identical employee” because she too is sexually attracted to men, is equally good at her job, and so on. The only relevant difference is sex: Adam is male and Eve is female. If Adam is fired but “the employer would have tolerated” Eve’s sexual attraction to men, then Adam was fired because of his sex. That is why—the Court concludes—firing someone for being gay is illegal.
Next, imagine that the unfortunately terminated Adam is a transgender man—a person who, in the Court’s phrase, “was identified as female at birth” but who lives as a man. “Identified as female at birth” means: female at birth and observed or recorded to be so. This is quite different from the fashionable “assigned female at birth,” which does not imply anything about whether the assignment is correct.
Male Steve is a hypothetical “otherwise identical employee” because he too lives as a man, is equally good at his job, and so on. The only relevant difference is sex: Adam is female and Steve is male. If Adam is fired but “the employer would have tolerated” Steve’s lifestyle as a man, then Adam was fired because of his sex. That is why firing someone for being transgender is illegal.
Not every member of the Court agreed with this reasoning. But all agreed with the starting point, that to fire someone “for sex” is to engage in federally prohibited discrimination. Moreover, the Justices took for granted that there are just two options for sex—male or female—and that sex is, given current medical capabilities, immutable in humans.
Many academics and activists think that the Court’s “binary” conception of sex is rooted in antiquated science. Renowned gender studies theorist Judith Butler claims that sex is not “a bodily given on which the construct of gender is artificially imposed, but … a cultural norm which governs the materialization of bodies.” Butler appears to be denying that the two sexes have been around for something like a billion years and are no more dependent on cultural norms than plants and animals, or gasses and solids. According to a video put out by Teen Vogue, the idea that “your true sex” can be determined by a physical examination is a “misconception”: “In fact, who you are is who you say you are.” According to the American Civil Liberties Union, it is a “myth” that “sex is binary, apparent at birth, and identifiable through singular biological characteristics.” Often the traditional binary conception of sex is said to be refuted by examples from biology, including sex-changing clownfish and human sex-chromosomal abnormalities.
Fake facts make bad law. If the traditional binary conception is mistaken, the decision in Bostock rests on a scientific fairy tale. Fortunately, it is not mistaken.
Humans come in male and female varieties, of course, as do numerous other animals from ants and anteaters to zebras and zorillas. Elsa the lioness is no less a female than Rosa Parks or Melania Trump. There are female fish, frogs and flies. All flowering plants are hermaphrodites—both male and female—as are some animals like slugs.
But what is it to be male or female? The vast diversity of males and females shows that any attempt to define “male” and “female” in terms of primary or secondary sex characteristics, such as a vagina or breasts, or in terms of sex chromosomes, is a mug’s game. Some relevant facts: male seahorses get pregnant, some female insects have a penis, and alligators have no sex chromosomes at all.
There was no guarantee in advance that the organisms we label “female” would have anything interesting or important in common—but they do. For an explanation, we should turn to biologists, not gender studies theorists or philosophers. (Likewise, if you want to know what gold is, you should ask a chemist, not a financial historian.) One expert is the biologist—and, as it happens, transgender woman—Joan Roughgarden. Here’s how she puts it in her book Evolution’s Rainbow: “To a biologist, ‘male’ means making small gametes, and ‘female’ means making large gametes.” Gametes are sex cells—sperm and eggs. Roughgarden’s explanation could do with some refinement, mostly because some males and females don’t make gametes for a variety of reasons (prepubertal human males and postmenopausal human females are obvious examples), but it neatly captures the basic idea.
Having the biology textbook account of “male” and “female” on the table clears up a lot. There is no third, intermediate gamete size, so there are only two sexes. A male-to-female sex-changing clownfish goes from being a small-gamete producer to a large-gamete producer, with testicular tissue degenerating and ovarian tissue developing. This ability to transform from one sex to the other—sequential hermaphroditism—is found in many other fish, although not in mammals.
Further, since being female is not the same as having XX chromosomes, and being male is not the same as having XY chromosomes, human sex-chromosomal abnormalities do not show that some humans lie “outside the sex binary.” Someone with XXX chromosomes, for example, is unproblematically female. This also applies to nearly all conditions in which the male or female reproductive systems do not develop in the typical manner.
It is self-defeating for defenders of transgender rights to hitch their wagon to shaky accounts of sex. The Bostock decision provides some reassurance that biological reality is nothing to fear.
Bostock only explicitly covers discrimination in employment, but it will surely have ramifications elsewhere. One casualty may be the recent decision by the Department of Health and Social Services to remove Obama-era protections for transgender people from the Affordable Care Act. But, whatever further work Bostock can do on its own, we support the campaign to increase federal legal protections for LGBT individuals.
The 2019 Equality Act, as Rep. Nadler proclaimed, “amends the Civil Rights Act of 1964, and other core civil rights statutes, to explicitly prohibit discrimination on the basis of sexual orientation and gender identity.” The goal of extending protections to sexual minorities is unimpeachable; the problem comes with the implementation. Sex is redefined to include “sexual orientation and gender identity,” “a sex stereotype” and “sex characteristics” and all occurrences of “sex” in the CRA have been replaced by “sex (including sexual orientation and gender identity).” The plain meaning of “sex” and the old categories of “male” and “female” have disappeared into a bewildering vortex of obscure and circular definitions.
The EA does make an attempt to define gender identity in terms of the phrase “gender-related identity,” but the definition is no easier to understand than gender identity itself. “Gender,” which the EA does not appear to use as a synonym of “sex,” is not defined either. That is a particularly unfortunate omission, since “gender” suffers from a multiplicity of senses in academic writing.
In Justice Alito’s dissent in Bostock, he mentions a standard definition of gender identity: “an internal sense of being male, female or something else.” A brief for one of the Petitioners states that “everyone has a gender identity.” A trans man, on this view, has a male gender identity that does not match his sex identified at birth; the gender identity of a non-trans or cis man, by contrast, does match his sex. Although widely held, the view looks suspect on closer examination.
Psychiatrist Robert Stoller coined the term “gender identity” with a colleague in 1964, defining it as “the sense of knowing to which sex one belongs”; he later called this core gender identity. This is both clear and scientifically useful, and practically everyone has this kind of gender identity—an awareness of what sex they are. But it is not “gender identity” as it is commonly understood today. Take, for instance, the trans man and activist Buck Angel, who started taking testosterone as part of his gender transition, when he was twenty-eight. The hormone has wrought spectacular effects, giving him bulging muscles and an impressive beard. Mr. Angel, who refuses to parrot approved slogans, recognizes that he was born a female and remains one. Indeed, he is not shy about saying so. If Mr. Angel has a gender identity that does not match his sex, it is not Stoller’s core gender identity.
The contemporary kind of gender identity is not a person’s simple knowledge or conviction that they are male or female. It is something much more elusive and subjective, a kind of spectral sex. Good law needs clear terminology, and “gender identity” conspicuously falls short.
Another, perhaps more pressing, concern is the Equality Act’s prioritization of gender identity over biological sex. The EA’s peculiar definition of “sex” as including “gender identity” in effect gives primacy to gender identity over biological sex when they conflict.
An obvious example of such a conflict is sport, which is divided into sex classes because of the general athletic advantage secured by a male puberty. Other examples include women’s shelters and rape crisis centers. These conflicts can be exaggerated, but they do exist, and reasonable people can disagree about their proper resolution. The existence of reasonable disagreement is a sign that legislators need to step back, and allow that single-sex provisions may be permitted where the exclusion is, in the words of the UK Equality Act 2010, “a proportionate means of achieving a legitimate aim.”
As to the problematic notion of gender identity itself, the majority opinion in Bostock suggests an alternative. Justice Gorsuch does not use “gender identity,” but instead writes of “transgender status.” And “transgender” has an umbrella sense that encompasses people who, in the words of the American Psychological Association, “cross, transcend, or do not conform to culturally defined norms for persons of their biological sex.” We want to legislatively protect this class of “gender variant” people—which includes butch lesbians and feminine gay men, as well as trans men like Mr. Angel. Phrasing like the APA’s will do that nicely.
J. K. Rowling recently tweeted: “If sex isn’t real, there’s no same-sex attraction. If sex isn’t real, the lived reality of women globally is erased. I know and love trans people, but erasing the concept of sex removes the ability of many to meaningfully discuss their lives.” Predictably, she was swiftly subjected to a torrent of sexualized abuse on social media. Rowling might have added that, if sex isn’t real, there’s no transgender status either. Sex is real and it is not the enemy—deployed appropriately by the law, it can be an aid to social progress.