We are at an inflection point in the fight for transgender equality, what I have called the civil rights issue of our time. And it’s not just a singular case of identity, it’s about freeing the soul of America from the constraints of bigotry, hate, and fear, and opening people’s hearts and minds to what binds us together.–Former Vice President Joe Biden in a foreword to a 2018 book by a transgender activist.
Over the years I have from time to time suggested that the single most defining issues of the 21st century will not be about war and peace or other demanding geopolitical problems, but rather about what it means to be human. Well, Joe Biden is doing his part to advance such issues, and now we have, in the case of Bostock v. Clayton County, a Supreme Court decision in which Justice Neil Gorsuch, writing for the majority, has updated the meaning of “sex” in the Civil Rights Act of 1964 to include sexual orientation and gender identity. Another victory for the “Constitution of 1964” over the Constitution of 1788 (see review of Christopher Caldwell’s book in this issue). And as with other aspects of the unforeseen consequences of the civil rights revolution of the 1960s, it would surprise even the most aggressive civil rights warriors of that era because there is absolutely no evidence that Congress or the people in 1964 understood gender identity and sexual orientation to be the equivalent of biological sex. And in dissent, Justice Alito argued in this case that it has long been understood under the law that sexual orientation and identity are distinct concepts from sex.
But so much for what it means to be human, and the ramifications in terms of consequences are mind-boggling. Just start with the fact that there are probably hundreds of federal laws that prohibit sex discrimination–the plaintiff bar will have a newly expanded gold mine! Much better to have left the law alone and let Congress and the people decide if and how to fix it. Meanwhile, Chief Justice Roberts continues his drift into “living Constitution land” and his support of the majority was no surprise here, but Justice Gorsuch, who is supposed to be a staunch originalist, was a big disappointment, and in reviewing other decisions across the board for this term, this is certainly not the reliably conservative court many had expected.