When Vanita Gupta, then the acting head of the Civil Rights Division of the Department of Justice, created her memo of whole cloth because it was a policy that she wanted and liked, it was much the same as Title IX’s Dear Colleague Letter. It was dangerous, baseless and, ultimately, a bureaucratic stretch of power for which there was no basis in law. It earned Gupta a place in Biden’s White House.
The difference then was that Congress never said so. The Supreme Court never said so. Nobody but Gupta said so, and yet there was Gupta, on behalf of the DoJ, threatening a state to do as she commanded upon pain of losing federal funding, because she cared nothing about abusing power to accomplish what she wanted done. And for those devoid of principle, but in favor of the outcome, she was a hero. After all, as long as one favors an outcome, what different does it make how wrong the means to achieve it?
But that was then, and now Pam Karlan heads the Civil Rights Division. And unlike the bureaucratic usurper Gupta, Karlan comes by it a little more honestly.
Several federal agencies have recently contacted the Civil Rights Division with questions regarding the application of the Supreme Court’s reasoning in Bostock v. Clayton County, 140 S. Ct. 1731, 590 U.S. ___ (2020), to Title IX of the Education Amendments of 1972, as amended
(20 U.S.C. § 1681 et seq.) (Title IX), particularly in light of Executive Order 13988, Preventing
and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, 86 Fed.
Reg. 7023 (Jan. 25, 2021).
When Biden signed the EO in the midst of a flurry of policy shifts that created the appearance of open-mindedness while signaling exactly where his government was going, there was little doubt that this was soon to come. And now it’s here.
Executive Order 13988 sets out the Administration’s policy that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” Citing the Supreme Court’s holding in Bostock that the prohibition on discrimination “because of . . . sex” under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), covers discrimination on the basis of gender identity and sexual orientation, the Executive Order explains that Bostock’s reasoning applies with equal force to other laws that prohibit sex discrimination “so long as the laws do not contain sufficient indications to the contrary.” The Executive Order directs agencies to review other laws that prohibit sex discrimination, including Title IX, to determine whether they prohibit discrimination on the basis of gender identity and sexual orientation. We conclude that Title IX does.
Karlan’s argument did not rely on the parade of horribles for gays, whether as employees or in society at large, but in the old school approach to sex discrimination, sticking with the word as written, even as intended, and applying it to a straightforward fact pattern. If it’s fine for a woman to do something, then it can’t be disadvantageous for a man to do the same thing.
It was, as noted at the time, a brilliant argument, avoiding the losing battle that the word “sex” in Title VII meant something entirely different than was understood at the time, and has since been reinvented by the conflation of the old man/woman thing with a string of initials and 36 flavors. And employing some florid language, Justice Gorsuch wrote for the Court.
We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.
On the one hand, it explicitly says that the word “sex” in Title VII is distinct from homosexuality and transgender status. On the other hand, the significance of this distinction is immediately undermined by saying “the first cannot happen without the second.” As if this wasn’t sufficiently confusing, Gorsuch went on to make another distinction.
What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
In other words, the Court expressly stated that its holding in Bostock was limited to Title VII, employment discrimination law, and not to be generally extrapolated to other laws that similarly use the word “sex” as part of the list of bases upon which discrimination is prohibited. Like, oh, Title IX, discrimination in education.
The Supreme Court didn’t exactly say “no,” but then it clearly said it wasn’t yet saying “yes.” That didn’t stop Karlan from rationalizing it away.
Title IX’s “on the basis of sex” language is sufficiently similar to “because of” sex under Title VII as to be considered interchangeable. In Bostock itself, the Supreme Court described Title VII’s language that way: “[I]n Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.”
To be fair, her rhetorical argument is strong, as Gorsuch’s Bostock sophistry opened itself to exactly this reading, as should have been obvious at the time. And indeed, pretty much every mention of Bostock since misstates the holding as prohibiting discrimination against gay and transgender people despite Gorsuch’s pains to say that without actually saying it.
But then, Karlan knows Bostock, and must be well aware that the Court expressly distinguished Title IX from its Title VII ruling. Not that she plans to let that stop her from pulling her own Gupta, or worse, Lhamon. Then again, if Congress didn’t want this to be the outcome, it could have written a law in 1964 that would anticipate the wholesale redefinition of “sex” more than 50 years later and specifically precluded it.