Bostock’s Consequence: Confusion

At Slate, Mark Joseph Stern looses his mind over the absurdity of it all.

There are many other statutes that bar sex discrimination, and the Biden administration has declared that many of these measures protect LGBTQ people under Bostock. Yet Trump Judge Matthew J. Kacsmaryk keeps halting Biden’s implementation of the Supreme Court’s decision. The judge’s latest salvo came on Friday, when he ruled that neither the Affordable Care Act nor Title IX protect LGBTQ people. This conclusion is a head-scratcher because the ACA (which bars health care discrimination) and Title IX (which bars discrimination in education) forbid sex discrimination, just as the Civil Rights Act does. So what’s the difference?

The answer is almost too absurd to believe: The Civil Rights Act outlaws discrimination “because of sex,” while the ACA and Title IX outlaw discrimination “on the basis of sex.” These two phrases, Kacsmaryk reasoned, have fundamentally different meanings. “Because of sex” protects LGBTQ people. “On the basis of sex” does not.

Stern is quite right that the Biden administration has applied the Bostock decision promiscuously. In every instance where a law or regulation mentions “sex” and “discrimination” in the same sentence, the administration has superimposed the poorly written, confusing and often incoherent Bostock holding that directly covers discrimination on the basis of gender orientation and gender identity, as necessary offshoots of discrimination on the basis of sex, male or female, as was the purpose and meaning when originally enacted.

But Stern’s polemic about “because of sex” or “on the basis of sex” raises a common problem. It ignores the actual reason.

As the Bostock majority opinion states:

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination…. 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. …

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.’

Bostock expressly stated that it applied only to Title VII employment cases, and not to any other federal or state laws that prohibit sex discrimination. And Title IX expressly distinguishes its application by sex under the old school definition.

Title IX’s prohibition against discrimination “on the basis of sex” cannot be reduced to a literalist but-for test. For instance, although not at issue here, Section 1686 states: “nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” The implementing regulations clarify educational institutions “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” It is doubtful Section 1686 permits educational institutions to maintain separate living institutions for each “sexual orientation” and “gender identity,” while a stand-alone Section 1681(a) prohibits same. The implementing regulation highlights the sex binary by referencing “the other sex”—which speaks directly to biological sex.

Ironically, Justice Alito’s dissent in Bostock raised the specter that litigants would “stretch” the ruling to apply to anything involving sex discrimination, regardless of the express disclaimer that it did not apply to any law other than Title VII, and for once, Alito wasn’t entirely wrong.

In Neese, physicians challenged the Biden administration’s rules that the Affordable Care Acts’s prohibition on discrimination “on the basis of sex,” the same language as Title IX but different language than Title VII, meant that they could not treat patients based on their biological sex, but on their gender identity. The argument is that they should not be prohibited from making gender-specific medical decisions provided they do not otherwise discriminate on the basis of sex. In other words, they would not, as physicians, be prohobited by law from acknowledging and acting upon the biological realities of their patients.

While Northern District of Texas Judge Matthew Kacsmaryk’s decision strayed into various other areas of culture controversy, such as whether transgender students should be allowed to engage in sports based on their identity, the issue of medical reality raises a very fair point. Are docs precluded from advising and treating patients based on biological fact rather than the “construct” of gender identity? Kinda hard to ignore ovaries or testicles, which are a bit more real than a social construct.

Seems ridiculous?

Dr. Hurly “once diagnosed a biological male patient with prostate cancer, but the patient refused to accept Dr. Hurly’s diagnosis because he identified as a woman and insisted that he could not have a prostate.”

Of course, the fact that the patient had a prostate, and that “her” prostate was cancerous, isn’t the doc’s problem beyond informing the patient of the diagnosis. If the patient chooses to ignore the doc and die of cancer instead, isn’t that the patient’s right, stupid as it may be? But what if the physician was prohibited from informing the transgender woman that “she” had prostate cancer because it would have violated the ACA? What if the physician decided not to risk liability for engaging in sex discrimination? What if the physician truly believed, as did the patient, that a prostate on a transgender woman could not exist?

The issue isn’t whether discrimination against gay and transgender people should be prohibited, no matter how vehemently the hysterics of its shallow absolutists or how awful  and hateful they feel Judge Kacsmaryk may be. The issue is whether and how to apply Bostock the great many other statutes, bureaucratic regulations and Executive Orders being applied by the administrative state no matter how absurd the result. Like it or not, this was always the problem with the nightmare created by Bostock, and no one should be surprised at how this will play out.