How a Conservative Legal Perspective Just Saved LGBT Rights

It is already a truism that the Supreme Court’s June 15 six–three decision, holding that discrimination against LGBT people constitutes sex discrimination, came as a shock to queer and trans legal advocates. With the replacement by Brett Kavanaugh of Anthony Kennedy, who tended to favor gay rights, and with John Roberts joining the dissenters in the 2015 same-sex marriage case Obergefell v. Hodges, it looked to be five solid votes against the gay and transgender employees in the three cases consolidated as Bostock v. Clayton County. Plans for protests were already in the works if the Court, as expected, greenlighted the firing of Gerald Bostock and Donald Zarda, two gay men, and of Aimee Stephens, a transgender woman.

Likewise, conservatives were not worried, since it seemed unimaginable that this Court would find room for queer and trans people under the carapace of a law passed fifty-six years ago ostensibly to protect women in the workforce. Such a major policy shift, they thought, would be legislating from the bench. (In the last few years, sex discrimination caselaw at the appellate level has been trending toward transgender plaintiffs; it remained more divided on the question of sexual orientation. The transition to a Trump-dominated judiciary is not yet complete in the circuit courts.) Last fall, two attorneys from the conservative First Liberty Institute confidently predicted victory for the employers: “As the maxim goes, Congress does not hide elephants in mouseholes. All things considered, it seems likely that this Supreme Court will continue to leave such large policy shifts to the discretion of Congress.”

That prediction failed, dramatically. For Neil Gorsuch, who authored the majority opinion, and the five other justices who sided with the gay and transgender parties, the logic “follows ineluctably from the statutory text.” One cannot fire a gay, lesbian, bisexual, or transgender person without taking sex into consideration.

Read the rest at The Boston Review

 

How not to stop the transrace/transgender comparison

Meredith Talusan in the Guardian explains why Rachel Dolezal’s identification as black should not be compared to Caitlin Jenner’s gender identity: “the fundamental difference between Dolezal’s actions and trans people’s is that her decision to identify as black was an active choice, whereas transgender people’s decision to transition is almost always involuntary.” Dolezal is getting trashed for her assertion of blackness, while, with the exception of Elinor Burkett in the Times, Jenner is only getting trashed for what some take to be her excessive femininity–most seem accepting of her decision to live openly as a woman. Talusan, like some other activists, are trying very hard to ensure that all the opinion about Dolezal doesn’t contaminate Jenner’s media moment.  But facile explanations like Talusan’s are doing more much harm than good. Case in point–Adolph Reed rightly makes mincemeat of her argument and then concludes: “the transrace/transgender comparison makes clear the conceptual emptiness of the essentializing discourses, and the opportunist politics, that undergird identitarian ideologies.” It’s too bad that Reed, such a brilliant thinker, assumes trans politics and claims to identity are always/only based the most simple minded versions of trans essentialism. But he’s getting that not just from Burkett, but from representatives of the trans community like Talusan. Newsflash–social theory in general and trans theory in particular didn’t end in 1980. We can do better than serve up these sad little cliches from the 1970s like the one that says that natural characteristics are involuntary, cultural ones a matter of choice.  But this tendency has (at least) two progenitors–the medical model of transsexuality and second wave feminism.