
On Monday, the U.S. Supreme Court ruled that discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity in the case of Bostock v. Clayton County (2020). In a powerful dissent joined by Justice Clarence Thomas, Justice Samuel Alito condemned the ruling as “preposterous” and betraying “breathtaking” arrogance. He noted that Congress has tried and repeatedly failed to amend Title VII of the Civil Rights Act of 1964 in just this fashion and that no one interpreted the law this way until 2017. In this decision, as in Roe v. Wade (1973) and Obergefell v. Hodges (2015), the Supreme Court usurped the power of Congress by creating “legislation.”
Perhaps most importantly, however, Alito warns that the decision will have wide-ranging destructive impacts on key freedoms Americans hold dear, and he predicts that “the entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
“As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty,” Alito warns. His dissent lays out seven different realms of American life that will be affected by this ruling.
1. Bathrooms and changing rooms
Naturally, the Supreme Court’s position that a ban on discrimination on the basis of “sex” includes a ban on discrimination on the basis of gender identity is not only a preposterous extension of the 1964 law but a dangerous reading of federal law in general.
As Alito warns, “the Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”
Based on broad understandings of “transgender status” that could include those who identify as “gender fluid” and those who have not undergone any surgery to alter their bodies. “A person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time,” Alito reasoned.
This is not to say that transgender people are predators, but to note that women have passionately fought for their rights and now their private spaces will be open to biological males. The true concern is not that a male who identifies as a female will abuse women, but that prurient men will abuse this loophole and some women who have experienced sexual assault will be victimized by being forced to share intimate quarters with biological males.
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