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society

Bostock: What Does Sex Mean in Antidiscrimination?

The SCOTUS decided to recognize the law protecting employees from firing for discrimination on the bases of sexual orientation and gender identity.

The decision hinges on the meaning of sex in the statute banning discrimination on that basis.

The question arises, what does it mean to ban sex discrimination? And that’s what the court had to answer.

Imagine for a moment you are trying to hire a person to push buttons in your factory. The applicants all come in dressed in those big mascot costumes. Their names are all types of clouds, like Cumulonimbus and MicroAmazon. But, you, being of the false belief that women are better at pressing buttons, want to hire a woman for the job. So you try to find some way to decide one mascot is a woman, and hire that one.

But over the course of ten years, you never do find out who it is in that mascot suit pressing all those buttons. It remains a mystery.

That is what the Supreme Court decided. We all have to buy and wear mascot costumes. I, personally, will be getting a costume to look like a Supreme Court justice, so you’ll have to find some other idea. Sorry.

Anyway, the above situation is meant to elicit the basic idea of expression. Without expression of sex, there is no discrimination of sex, because nobody would know how to discriminate on that basis. This happens to be true for the other protections in Title VII, as well, though oftentimes race and sex are assumed on some apparent characteristics, ultimately it comes down to expression. And religion, of course, always relies on expression, as nobody knows what anyone truly believes and only knows what they espouse. Also, national origin, which relies on express documentation and perhaps an accent or knowing a lot about your home country.

Without expression of these characteristics, there is no basis to discriminate. One could still be a bigot without, as in the example trying to hire the mascot with a woman inside, but one would never know if one was a successful bigot. And, besides, unsuccessful bigotry still violates the law against discrimination. If you fire someone because you believe they are one of those things, even if they aren’t, that’s still discriminatory.

Okay. So once you arrive at the realization that what sex really means is expression of sex, what is that? People don’t generally go around introducing themselves: “Hi, I’m Silver Lining and although I am dressed as a rubber chicken, I’m actually biologically female.” People almost never say what sex they are. Think about it, when was the last time you said aloud what sex you are? (And no cheating and saying it right now!)

Expression of sex, your social sexual identity, is based on some behaviors including how you dress, speak, your sexual orientation, the type of bicycle you ride, etc. Now, some people may express their social identity differently, by biting the heads or feet off the gummy bears first, for example. The court has to decide where to draw the line on what is a protected expression of sex, and what is just being a bit weird with your candy, dude.

And that analysis, which wasn’t really done in Bostock, probably comes down to commonality of a type of expression. That is, just because you express yourself in a unique way doesn’t mean it’s not protected. But is that expression of a type that is common to humans generally expressing their sex?


Anyway, the election is in nineteen weeks.