by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Justice Gorsuch’s reasoning is, of course, impeccable: If you wouldn’t fire a woman for wearing a dress, you can’t fire . . . well, wait: The transgender ideology insists that a biologically male individual who identifies as a woman is female in the same sense your mother is, so it cannot be that sex is genuinely the issue — the issue is that one of the ladies in the office is being treated differently from the others. Justice Gorsuch squares this all with a nice dose of hocus-doofus: You wouldn’t be homosexual if you weren’t the same sex as the people to whom you are sexually attracted, ergo discrimination against homosexuals is discrimination on the basis of sex. In parallel: If you really weren’t a member of the sex you say you are not a member of, you wouldn’t be transgender, ergo sexual discrimination, QED.
“Textualism,” Justice Gorsuch calls this.
And he has a point. His reading of the text is entirely sophomoric, but it is in its daft way literal and, if you are willing to be persuaded, persuasive. There is that niggling question of democratic legitimacy: Nobody who voted for the Civil Rights Act of 1964 thought he was voting for a bill to equate the situation of transgender people, of whom no one had heard of then since the word had not yet found its way into English, with the situation of African-American people, and to place the whole mess under rigorous federal monitoring. Nobody who voted for the 1964 bill was voting for that, and none of the people who voted for those representatives thought he was voting for such a thing, either. It is a law that nobody agreed to, but, if we are to credit Justice Gorsuch et al., the plain fact of it has been sitting there, awaiting discovery, since Gorsuch was toddling around his kindergarten in Denver.