You might not know that this month is “Pride Month” given that Black Lives Matter protests have dominated headlines. Yesterday, however, the LGBTQ movement jumped back into the news when the Supreme Court, in a 6-3 decision in Bostock vs. Clayton County, gifted their movement with yet another nation-wide policy victory. Like same-sex marriage, which became law in States that never voted for it through Obergefell v. Hodges, bans on employment discrimination based on “sexual orientation” and “sexual identity” are now law throughout the country through similar judicial fiat.
Ironically, just as Pride Month was overshadowed by more serious issues, yesterday’s extra-democratic LGBTQ policy-victory will likely be overshadowed by the far more serious legal implications of the argument Justice Neil Gorsuch used to support it. The central claim of Gorsuch’s argument is that “discrimination based on sexual orientation or sexual identity” necessarily includes “discrimination based on sex.” Many conservatives, including Justice Samuel Alito in his dissent, have pointed out the disastrous implications this could have for related issues like women’s sports. But, there are racial implications that no conservatives seem to have figured out, yet.
If “discrimination based on gender identity” necessarily includes “discrimination based on sex,” then “discrimination based on racial identity” necessarily includes “discrimination based on race.”
Seeing how this is so requires understanding Gorsuch’s argument. His argument turns on the hypothetical case where an employer asks applicants to check a box if they are homosexual or transgender and then uses that information to make hiring decisions. But, crucially, the employer never finds out if the applicants are male or female. According to Gorsuch’s argument, the employer still engaged in sex discrimination despite not knowing the applicant’s sex. How is that possible, you ask? He explains:
In other words, in order for applicants to figure out whether they are gay (and thus know whether to check the box), they must first know whether they themselves are male or female. According to Gorsuch, the fact that the applicant must reference his/her own sex to answer the question means that asking it was a form of sex discrimination. To understand the mind-boggling lunacy of this logical leap, consider the following hypothetical example.
An employer starts a company dedicated to ending racism in America by promoting an anti-racist culture. In order to ensure that no overt racists ever work for his company, he puts on his employment application this question: “do you think your own race is superior to all others?” According the logic of Justice Neil Gorsuch, that employer just engaged in “discrimination based on race.” Why? Because, in order to answer his question, employees are forced to reference their own race.
Would any reasonable person consider a question about a person’s racism to be discrimination based on race? Of course not. But, unfortunately, Neil Gorsuch is not a reasonable person, at least when LGBTQ public policy is on the line. This mental defect is probably a side-effect of his mainline Episcopalianism. Can we get Catholics back on the Court, please?
One further application of Gorsuch’s ludicrous logic is even more nefarious. It is now illegal, around the country, for an employer to fire a man for any actions that he would not also fire a woman for doing. For example, you cannot fire a biological man for identifying as a woman and wearing a dress to work if you would not similarly fire a biological woman for identifying as a woman and wearing a dress to work. Firing one but not the other would be sex discrimination.
Applying this to race discrimination leads to an absurd, if unsurprising result. If an employer fires any white woman for actions that he would not also fire a black woman for doing, he can be sued for racial discrimination. If an employer would not fire a biologically black woman who identifies as black and wears black makeup to work, then he cannot fire a biologically white woman who identifies as black and wears black makeup to work without running afoul of Gorsuch’s new, Court-sanctioned logic.
In other words, Neil Gorsuch just argued that the 1964 Civil Rights Act protects the Constitutionality of blackface. And this argument is now precedent.