Discrimination Nation

We discriminate. All of us. All the time. If we didn’t, we would be indiscriminate, and nobody wants to be indiscriminate. Some discrimination, such as discrimination based on race, is unlawful in certain circumstances such as employment. Other types of discrimination is not. We discriminate in the food we prefer to eat, the people with whom we chose to have romantic relationships, the players on our team, who to follow on the twitters.

We discriminate, and there is nothing wrong with discrimination. We are allowed our preferences, except when the law informs us we are not.

In 1964, Congress made an extremely controversial move at the time. It crafted a list of characteristics against which discrimination would be unlawful in employment. Title VII of the Civil Rights Act of 1964 included “race, color, national origin and religion.” These weren’t arbitrary words that someone tossed into a salad, but very deliberately chosen so that employers could not pull some shifty move, find an excuse that would serve to circumvent the law and undermine its purpose, to force a societal shift in our acceptance of racial equality.

You will note that the word sex wasn’t included in the list. Gillian Thomas of the ACLU accurately explains why:

In the original bill, Title VII prohibited on-the-job discrimination only on the basis of race, color, national origin and religion. But shortly before it passed the House, Representative Howard Smith of Virginia added “sex” — perhaps as a poison pill, or to protect white women as well as black women. In any case, because the amendment was made during floor debate, we have almost no record of what representatives were thinking when they voted on it.

The lack of legislative history explaining the inclusion of the word “sex” in Title VII is the basis of what we today call an “exploit,” a tiny crack which some hope to sneak through to impute the meaning they seek to include. While Thomas is right that Congress provided essentially no explanation of what it was trying to do by including the word “sex” in there, that doesn’t mean that the word itself lacked any inherent meaning.

IN 1964, the word sex referred to male and female. It is not to suggest that no such thing as homosexuality, or genital abnormalities, or conflicted gender identity, existed in 1964. It’s that the word “sex” didn’t address these issues. It addressed discrimination against women. And the social justice warriors of the day were fighting a battle for equality between the sexes. The binary sexes.

At the time, that was enough of a war.  Had anyone suggested that the word sex related in any way to transgenders, it would have been ludicrous, and women would have been outraged at another group, clearly not included, trying to hijack their battle and horn in on a law from which they were never intended to benefit.

In the decades since passage of Title VII, it has fallen on the courts to determine how it’s to be applied in the myriad circumstances imaginative humans have created. Concepts such as “suspect classifications,” which requires a court to apply strict scrutiny, “bona fide occupational qualification,” which allows an employer to discriminate notwithstanding the law, have been developed to apply Title VII. In the context of sex discrimination, where the issues addressed the binary distinction of male and female, there have been a multitude of decisions trying to figure out how to apply the law in a rational, doctrinally sound way.

The ACLU’s Thomas argues for the exploit:

The Obama administration thinks so, as do several district and circuit courts. But North Carolina officials call that a “baseless and blatant overreach” and a “radical reinterpretation” of Title VII. They argue that the authors of the law did not have transgender people in mind when they wrote it.

But that position not only misunderstands how legislative interpretation works, it also fails to grasp the historic complexities of Title VII’s sex provision. The provision has always been contested. Since we don’t know much about why Congress enacted it, we have to look at how courts have interpreted it over the years — and they have constantly expanded its meaning.

This is not accurate, that the courts have “constantly expanded” it’s meaning, although it might well seem that way. Courts have applied the law to the situations before it. And indeed, what might well be characterized as expansion was still tethered to the original concept of the law. But baby steps being what they are, each ruling applying the law brought it ever-so-slightly farther from its simple core concept.

Other court rulings have recognized myriad forms of sex discrimination that would likely blow Representative Smith’s mind. A gas company that erased women’s seniority while they were on maternity leave, while keeping other leave-takers’ credit intact, was ruled in 1977 to have discriminated because of sex. A few years later, the Supreme Court found an employer’s health plan that provided less extensive care for the wives of male employees than for female employees to be discriminatory.

Sexual harassment, a concept that didn’t even have a name in 1964, was finally acknowledged by the court in a unanimous 1986 decision to be discrimination because of sex. About a decade later, the court expanded Title VII’s coverage of sexual harassment by outlawing same-sex harassment, too. Justice Antonin Scalia wrote the opinion and responded to critics who argued that harassment of men by men was unquestionably not what Congress had in mind when it passed Title VII. He wrote that legal protections “often go beyond the principal evil to cover reasonably comparable evils,” and what matters is the law itself, “rather than the principal concerns of our legislators.”

Putting aside the irony of arguing in favor of the textualist’s position, there remains a question of when a law, based upon its most distant application, is a mere baby step away from application that is no longer tethered to the law itself, but at best its farthest use. Either the attempt to connect it back to the law extends forever, or the connection snaps. It’s pushed a step too far, when there is no longer any connection between the attempted application and the law.

Once the act passed, it was largely up to courts to interpret the sex provision. At the beginning, the most blatant barriers fell — for example, rejecting employers’ attempts to limit certain jobs only to women (flight attendant) or only men (switchman for a telephone company).

Over the years, the courts deepened and broadened their interpretation of sex discrimination.

The courts cannot “deepen and broaden” a law, as that’s beyond their authority. They can only decide whether it applies to the circumstances before it, although courts have violated their own legitimacy from time to time, giving this characterization unfortunate merit.

The current attempt to extend Titles VII and IX from sex discrimination to transgender discrimination is of an entirely different nature, raises entirely different issues. Proponents argue in favor of the extension because they agree with it, which is fine. They denigrate all opposition by tarring it as discriminatory hatred toward transgenders. That’s dishonest, but in a war for one’s social justice agenda, dishonesty is hardly an obstacle. This is war.

Does American want to extent protection against discrimination to transgenders? Maybe. There are a great many issues that never arose under Titles VII and IX before, because gender identity is nothing like skin color. There are a great many tradeoffs involved, new issues never before decided, that will affect a great many people.

Is now the time to open that door, deal with those issues? Perhaps it is. Perhaps it’s not. But just as Congress enacted Title VII back in 1964, having made a decision that the time had come to take action against racial discrimination in employment, it’s up to Congress, and America, to make this decision.

It is not up to Vanita Gupta, Catherine Lhamon, even Loretta Lynch, to decide that now is the time to impose a fundamental restructuring of social norms by unilateral fiat, the power of the purse, and, they hope, a judge who is sufficiently agreeable to take one more baby step, but rather than go in the straight line, take a step to the left.

This isn’t about loving or hating gender identity. It’s not about whether it’s real or not, or should or shouldn’t suffer discrimination. It’s about a decision that Americans need to make, whether this is one of the aspects of humanity that is protected from discrimination. Bear in mind, if discrimination against transgenders becomes unlawful, then the baby steps start anew.

Consider the notion that your child at college refuses to date a transgender person, and becomes the accused in a Title IX action. Should this be part of the good discrimination, the choices to which every person is entitled, or do we give away our individual choice in the name of transitory social justice? These are the issues that could arise. We need to think long and hard before we find ourselves in the position where they do, because our eyes were clouded with the tears of discrimination when we allowed our emotions, our empathy toward transgender folk, to overcome reason and law.

24 thoughts on “Discrimination Nation

  1. RollieB

    “It’s about a decision that Americans need to make…”

    In a democracy, the majority of the citizens is capable of exercising the most cruel oppressions upon the minority. People crushed by laws, have no hope but to evade power. If the laws are their enemies, they will be enemies to the law; and those who have most to hope and nothing to lose will always be dangerous. When the leaders choose to make themselves bidders at an auction of popularity, their talents, in the construction of the state, will be of no service. They will become flatterers instead of legislators; the instruments, not the guides, of the people. (Edmund Burke)

    Let’s hope we, the American people, think long and deep before we continue to allow marginalization of another minority group.

    1. SHG Post author

      Unfortunately, people of limited grasp fail to realize that there is a marginalized minority group for everything. It’s just a matter of coming up with the right rhetoric to trick the ignorant, who resort to vague philosophical quotes such as Burke’s because they lack the capacity to grasp nuanced distinctions. Left handers? Brown eye color? Short? People with allergies? The tattooed? Chocolate lovers? Chocolate haters? People who are sexually aroused by crushing small animals? There is no limit to who can claim minority status, who can find a way in which their every desire isn’t accommodated by society. For those incapable of grasping this, the resort to simplistic platitudes and solutions makes complete sense despite it being dangerously foolish.

      What Burke refers to is the “tyranny of the majority,” who would deny some the fundamental rights that are to be afforded all people. The difference between deprivation of rights and provision of privileges is a very hard one for most people to grasp. Most people, like you, lack the capacity to grasp the distinction. If transgender people were denied the right to use a bathroom, any bathroom, it would be a deprivation of rights, a violation of equal protection. That they may not be allowed to use their bathroom of choice, or that the allowances made for them to choose a bathroom are contingent on a non-objective criterion such as how they choose to identify, is not a deprivation of rights, but a conferral of benefits that comes at the expense of other people’s benefits.

      If America chooses to divvy up benefits to transgender folks, that’s fine. It may come at the expense of race or gender, but that’s the price of making choices. And there is a good chance that America will make stupid choices that it will later regret because most Americans are well-intended but ignorant, and lack the capacity to grasp consequences. But that’s the nature of people. At least we should be allowed the ability to make the choice rather than have it rammed down our throat. Then, we will have no one to blame but ourselves.

      1. Roger

        When I was growing up, I sometimes used public bathrooms that said “white only.” Blacks were not denied the right to use all public bathrooms, they just weren’t provided the privilege to use bathrooms they chose. Letting them use white bathrooms would have been a conferral of benefits that came at the expense of people who didn’t want to pee around black people. Have I got this rights/privileges distinction down?

        1. SHG Post author

          No. I thought I had explained this in the post, but apparently not well enough. Race isn’t the same as gender identity. One is an immutable characteristic, objectively determinable, that bears no relationship to any justification for segregation other than prejudicial preference.

          Gender identity, as the example du jour, meets almost none of those criteria, raises entirely different issues because while there may be no legitimate difference between a black person and a white person, there are legitimate differences between a male and a female, and so there is essentially nothing comparable between the two except on the most superficial and ignorant possible level.

          When we eliminated separate but equal as a violation of the Constitution, it was not as a generic concept, but as applied specifically to race. It’s not because separate but equal was inherently wrong (remember, we discriminate all the time), but because applying it on the basis of race was inherently wrong. I hope that helps you to see the difference.

          1. Roger

            At the extremes, race may be an immutable characteristic that can be objectively determined. Less so in the muddy middle, as the thousands who have successfully “passed” can attest. Kind of like gender identity, which is clear for those of us on the extremes but not so much for a few in the middle.

            But that wasn’t really the point of my comment. My point was intended to be that the rights/privileges distinction you make is too facile to support your argument.

            There’s a legal blogger I read every day who’s really good. He has an occasional dud, but that’s to be expected from anyone who’s as, uh, prolific as he is. He wrote a great piece that touched on the right to travel vs the privilege to fly called The Power Of The Petty Over Privilege. I highly recommend it.

            1. SHG Post author

              I’m always smarter when someone agrees with me. Sometimes, I fall short of being able to explain something adequately so that all readers understand it. You’re right, that’s a dud, whether because I’m too facile or my effort to explain fell short.

            2. Andrew

              Someone is being facile, but I don’t think it’s Scott. He explained the two components that you conflated in your example to prove him wrong quite clearly. If you were right, and Scott was being facile, there would be no argument here at all, as any bathroom/locker room would be open to all, any separate but equal being unconstitutional. And the same would follow through all aspects of life.

              And that some people “pass” is hardly determinative, but that’s such a silly rejoinder that it’s unworthy of discussion.

      2. JAV

        It’s a point that I appreciate SHG for not only making but for steadily repeating. There’s a point where the uncertainties in the law ought to be resolved through the democratic process. When we don’t the decision get made for all of us, minority and majority alike, by the bureaucrat.

        From my point of view, that’s profoundly dangerous to everyone’s rights and liberties.

    2. rojas

      If Caitlyn Jenner decides to pursue an interest in road construction or some other field of commerce that the feds have a procurement interest in does this company qualify for affirmative benefits under the Government Contracting Program?

      According to the SBA one of the requirements is “At least 51% unconditionally and directly owned by women who are U.S. citizens”. Under the administration’s new guidelines it should be enough to simply self identify. I would have to assume if one self identifies as a woman at least 51% of the time they are good to go. Does not seem fair to those who only self identify 47% of the time, but hey you got have rules.

      Many minority contractors complained about the the determination that sex would be a basis for set asides and other preferential consideration. They feared that the system would be gamed. It was, and I’m sure, it still is today.

      How does this new ruling promulgate through the system? Is gender identity as a basis for determination of sex limited to Tittle IX? Of course not, we don’t want to marginalize anyone.

      1. SHG Post author

        It will be gamed, but this is one of the vexing question that is unanswered by plowing ahead based on righteousness rather than reason. How does one distinguish a legitimate trans from a phony? There are a lot of guys who will wear a dress to work for the right price. And if the only qualification is their self-identification, no one can question their claim.

  2. MNC

    I’m happy about the direction, but the method leaves a very bitter taste in my mouth. I don’t think we need to worry about the next administration going in the opposite direction and making things worse than they are now, perhaps by segregating toilets and locker rooms by sexual orientation, too. After all, if a man in a women’s bathroom is dangerous for little girls, wouldn’t a gay man in a men’s bathroom be dangerous for little boys? But neither candidate seems likely to go into that direction.
    But they could well decide to apply the same method in other areas. Indeed, they very well could even without going this far. We’ll see how long legal weed in Colorado will last.

    I’m sure if that happens, the blame will be put solely on the administration. And rightly so, in a way, since how they use the powers given to them is, of course, only up to them. That was supposed to be the reason for limiting their power, but it seems resisting that shiny candy before our eyes is hard, poison be damned.

    1. SHG Post author

      A covert rationale for the ultra vires use of executive power is that Congress is paralyzed, and so if we’re to accomplish anything, it must be by an executive power grab or no good cause will ever be accomplished. There are obvious levels of hypocrisy and self-serving rationalizations in this, in that one sides “good cause” is the other side’s nightmare, and so people squint hard and let the ends justify the means.

      When the same power is improperly used for goals with which they disagree, they will squeal like pigs that it’s wrong and terrible. My views on the goals of this particular endeavor aren’t important. But whenever we reject principle in favor of “the ends justify the means,” terrible things happen, and we spend the next century trying to undo the damage once we realize the damage we’ve done. But then, I believe that George Santayana was right, and we need to remember history so we don’t repeat it.

      Congress is a disaster? You bet. The solution is to think harder, be smarter, elect better legislators, not circumvent Congress.

      1. RollieB

        “The solution is to think harder, be smarter, elect better legislators, not circumvent Congress.”

        This requires an educated, hard thinking electorate, something that seems to be in short supply.

        1. SHG Post author

          Congressional paralysis may also be the only thing that saves us from ill-advised action. When Congress ticks like a clock, it doesn’t necessarily mean its laws are a good thing. Sometimes, inaction saves us from ourselves.

          1. BlixKrogg

            If Trump wins, we will probably have a happy scenario where members of both parties (but the left especially) will be eager to restrict presidential power. We’ll also likely have a congressional makeup that will prevent zealous legislating, too.

            1. SHG Post author

              The Trump card is what both pushes the agenda ahead of pace and what should scare the crap out of the very same people. This is a dangerous game they’re playing, which could well come back to bite us all in the ass, but they’ve made their choice to rush ahead and get it done while they have the chance. Lord knows what next year will bring.

        2. REvers

          It also requires candidates who can be trusted to go within a thousand miles of the Capitol, and I’ve noticed a dearth of those over the last few decades.

    2. Patrick Maupin

      I’m happy about the direction

      We were apparently already moving in the “right” direction, if you look at what’s happened/happening in Europe and California and even Iowa. The push to go faster may exceed the ability of construction to keep up, and the push to let everybody decide what restroom they want to use in the absence of the correct construction could be more dangerous and will certainly be embarrassing for a lot more people than the current status quo. A curious result, considering that the impetus is supposedly to reduce danger and embarrassment.

      if a man in a women’s bathroom is dangerous for little girls, wouldn’t a gay man in a men’s bathroom be dangerous for little boys?

      Yes (well, only the gay pedophiles). Which is possibly one of the historical reasons for fear and loathing against gays. We now realize that not all gays are a menace to our little boys, so we somehow extrapolate that to “no guys who want to use the ladies’ room is a menace to little girls or even women.”

      In any case, using equal rights to push this is stupid. The cisnormal male, considered by all the agitators to be the pinnacle of power, prestige, and wealth, has always been prohibited from using the women’s bathroom (and, if he continues to self-identify according to his true nature, may continue to be prohibited from doing so).

      This same cisnormal male is happy to share his bathroom, or even his locker room with whomever shows up — only a few luddites still think men have any privacy rights, and they are quickly disabused of this notion.

      The cisnormal male is slightly baffled that some of the same women who will have him arrested if he shows his junk in public want to come into a private room with him and see it there, but whatever — he will adjust.

      So, equal rights aside, the whole thing has always been about controlling powerful males. It’s always been about where they can’t go, not about where anybody else can go.

      Society has already been putting in a third type of bathroom, for those who feel unsafe in the men’s room and will make others feel unsafe if they go into the women’s room, but that’s no longer good enough.

      In the name of equality, we’re now saying that anybody can go anywhere, based on their word about where they want to go. The largest contingent possibly affected by this change is — cisnormal males. So why are some of them against it? Because it worries the cisnormal females, and the fears cannot be dismissed out-of-hand. The average male is much stronger than the average female, the large majority of rapists and of voyeurs are both male, and the well-meaning males who could intervene in a bad situation, well, they’re not going to be in the ladies’ room.

  3. John

    It never ceases to amaze me how people can be fooled by misdirection due to popular narrative and presumption. I am hardly a visionary being an average working man but I saw concepts like rape culture coming 40 years ago when I was a teenager. It is not women and little girls who stand to loose from these proposed changes but men. There is a strong protective instinct in society toward women that will not be dislodged by laws. Who knows how many men already use female amenities. If they dress and look like females and behave themselves it would be no more risky than going out cross dressed on a Saturday night. Women will always be protected from the bad behaviour and the gaze of men but not vice versa. No one is going to let men who look like and act like men saunter into the women’s bathroom. This is about removing practices that have protected both men and women in the past except that as usual all any one can think about is how we can fix it up for the ladies. There is already a good chance that when using the mens you may have to put up with the unapologetic presence of a woman. Women have far less fear of entering male toilets than the reverse and are far more likely to “game” the system. Along with the push for unisex bathrooms (which would require the eventual removal of urinals) these proposals will require that men alone rise above their petty insecurities. Women will always be protected. In the long run acquiescing to these demands will lead to magazine headings of “should men be able to use public toilets”. If you want to see who suffers from these new found freedoms just check out what is happening to men in universities. For god sake we still can’t see this stuff coming.

    1. SHG Post author

      If you want to see who suffers from these new found freedoms just check out what is happening to men in universities. For god sake we still can’t see this stuff coming.

      I award you no points and may god have mercy on your soul. Now go away.

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