The 5th U.S. Circuit Court of Appeals judge is warning that the current transgender-activist movement will lead to the banning of all single-sex restrooms and changing facilities in the country.
“This case does not simply concern sexual orientation and transgender discrimination,” wrote Circuit Judge James Ho.
“It affects every American who uses the restroom at any restaurant, buys clothes at any department store, or exercises at any gym. What’s more, because federal statutes governing educational institutions employ language indistinguishable from Title VII, this debate also affects virtually every school, college, dormitory, athletic activity, and locker room in America.”
The case that drew the comments was Nicole C. Wittmer vs. Phillips 66.
Wittmer, a “transgender woman,” had applied for a job with Phillips 66 and was offered a position conditional upon passing background checks.
When the background checks came in, Phillips 66 learned Wittmer had been fired from his previous job. The company withdrew the job offer, and Wittmer sued, claiming discrimination based on transgender identity.
The courts concluded that there was no discrimination because of the deceptive information submitted by Wittmer on his application.
President Obama ordered that Title VII regulations of the 1964 Civil Rights Act banning discrimination based on sex, also banned discrimination based on sexual orientation.
President Trump reversed Obama’s orders when he took office, and Ho said the statute is clear.
“As a matter of ordinary usage, the term ‘sex,’ of course, does not mean ‘sexual orientation’ or ‘transgender status.’ ‘In common, ordinary usage in 1964 – and now, for that matter – the word ‘sex’ means biologically male or female … to a fluent speaker of the English language – then and now – the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation.’ The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning,'” he wrote.
He noted judges’ opinions have diverged, and only the U.S. Supreme Court ultimately can resolve the matter.
Ho explained that the longstanding view of a ban on discrimination because of sex is that employers cannot favor men over women for jobs, or vice versa.
The transgender agenda, however, would mandate that “employers to be entirely blind to a person’s sex,” Ho wrote.
“A brief example will illustrate the meaningful difference between those two visions,” he wrote. “Separate bathrooms for men and women are of course ubiquitous in our society. They are prevalent not because they favor one sex over another, but because they protect the privacy of both sexes. So separate bathrooms are permitted under the anti-favoritism theory of Title VII.
“But they are unlawful under the blindness approach to Title VII, because separate bathrooms are obviously not blind to sex.”
He said the law speaks for itself.
“No one seriously contends that, at the time of enactment, the public meaning and understanding of Title VII included sexual orientation or transgender discrimination. To the contrary, there is a judicial consensus that the public meaning of Title VII in 1964 did not include sexual orientation or transgender discrimination.”
He pointed out it was not until 40 years after the law was enacted that the first court “construed it to prohibit transgender discrimination.”
“If the first 40 years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how,” he said.
“If Congress had meant to prohibit sexual orientation or transgender discrimination, surely the most straightforward way to do so would have been to say so – to add ‘sexual orientation’ or ‘transgender status’ to the list of classifications protected.”
The Family Research Council pointed out that various groups have tried unsuccessfully to get Congress to make that change.
“After years of failing to persuade Congress to add ‘gender identity’ (or ‘sexual orientation’) as a protected category in federal civil rights laws, LGBT activists have adopted a new legal strategy. They now contend that discrimination based on gender identity is already illegal because it is a form of discrimination based on ‘sex,’ which was prohibited along with racial discrimination by Title VII of the Civil Rights Act of 1964,” the organization said in a statement.
The group said: “Judge Ho does a good job of explaining two different theories of interpretation of sex discrimination. Under the ‘favoritism’ theory, an act is only ‘sex discrimination’ if it favors one sex over the other. Under the ‘blindness theory’ (relied on by the plaintiff), an act is ‘sex discrimination’ if it takes sex into account in any way at all (in this case, because women may wear dresses to work but men may not, for example).
“Judge Ho points out very bluntly that under the ‘blindness theory,’ it would not be permissible to have ‘separate bathrooms and changing rooms for men and women.'”
FRC pointed out a lawyer for the National Center for Lesbian Rights agreed during the court hearing.
“This is significant. Up to now in the bathroom debates, transgender activists have conceded the legitimacy of separate men’s and women’s facilities, but have argued that people should be allowed to use the one that corresponds to their gender identity rather than their biological sex. But now we have a concession that a logical implication of the argument they are using for counting ‘gender identity’ discrimination as a form of ‘sex discrimination’ is that we could not have separate facilities at all.”