Check out our Podcast

  • Norman Young

Gorsuch Defends Blackface in the Workplace

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: