It’s only been a few months since the U.S. Supreme Court redefined the word “sex” in a federal law governing employment disputes, ruling it now protects gays, lesbians and transgender from discrimination.
But it’s already having a ripple effect, as Justice Samuel Alito predicted.
USA Today has assembled a list of additional cases that already have surfaced.
The high court’s Bostock decision, announced in June, was condemned by Alito for redefining “sex” in Title VII of the Civil Rights Act to include gender orientation.
The ruling simply changed the law, which, when adopted in 1964 was understood to ban discrimination based on being male or female. Now discrimination is banned against a man who, for example, dresses as a woman.
Alito at the time charged the majority was exceeding its role as the interpreter of the Constitution.
“There is only one word for what the court has done today: legislation,” he wrote.
He pointed out that the body responsible for legislation, the Congress, has proposed such measures but they have failed.
“The document that the court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive,” he wrote. “Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: ‘race, color, religion, sex, [and] national origin.’ … Neither ‘sexual orientation nor ‘gender identity’ appears on that list. For the past 45 years, bills have been introduced in Congress to add ‘sexual orientation’ to the list, and in recent years, bill have included ‘gender identity’ as well. But to date, none has passed.”
He also warned the decision was guaranteed to “have far-reaching consequences.”
Boys who say they’re girls beating biological girls in athletic competitions? Girls who say they’re boys in boys’ showers?
“We will not be able to avoid those issues for long,” Alito said. “The entire federal judiciary will be mired for years in disputes about the reach of the court’s reasoning.”
Now they’ve arrived.
“In recent weeks, federal judges from New York to Florida to Idaho have cited the Supreme Court’s ruling to justify expanding transgender rights beyond the workplace,” the USA Today report said.
For example, the 4th U.S. Circuit Court of Appeals ruled a high school student in Virginia can pick which restroom to use.
It was the fourth in a series of such decisions, all citing the Bostock ruling.
“We’re using Bostock everywhere, just about, in all these other contexts – education, health care, housing,” James Esseks of the American Civil Liberties Union told USA Today.
One remaining hurdle is the constitutional protection for religious rights. Many faith groups are bound by their beliefs to not endorse alternative sexual lifestyles, and the courts so far have not undermined thir First Amendment protection.
The issue has arisen in a case to be heard in a few months in which a Catholic social services agency that has served Philadelphia’s foster care program for decades is fighting the city’s demand that it place children with same-sex couples.
The high court opinion was limited to employment discrimination, with author Neil Gorsuch writing, “We do not purport to address bathrooms, locker rooms, or anything else of the kind.”
But Alito pointed out, USA Today reported, that 167 federal laws that could be affected by the ruling.
Already, judges have imposed requirements on the federal government regarding transgenders’ health care and have suspended a state law that requires only biological females in women’s athletics.
When a woman sued a Catholic hospital for not providing surgery to transition her to a man, Ryan Anderson of the Heritage Foundation said: “Predictable. Indeed, predicted.”
At the time, Michael Moreland, a professor of law and religion at Villanova, forecast the court will have to address demands from gay and transgender groups and the constitutional protections for religious faith.
There also was concern the landmark ruling would destroy the advances made for women’s rights in recent decades, because it would allow a man to co-opt the rights.
The high court had been warned about the decision in a filing from people who have experienced gender dysphoria.
“Differences exist between males and females at conception at the biochemical and cellular levels, and result directly from the defining genotypic difference between male and female mammals. An XY (male) sex chromosome constitution versus an XX (female) sex chromosome constitution. Every cell of a male is male, and every cell of a female is female.”
