The majority opinion in Bostock was surreal. How could six very intelligent people say that discrimination on account of sex includes discrimination on the basis of sexual orientation and gender identity? Justice Gorsuch reached that conclusion [delete] because, if an employer wouldn’t fire a man for sleeping with a woman but would fire a woman for doing so, the employer is treating the woman differently due to her sex. The analogy is as silly and flawed as saying you can’t fire a man for repeatedly going into the woman’s restroom because you don’t fire a woman for doing that, so you are illegally firing him because of his sex.
But wait a minute. Two judges on the Fourth Circuit don’t think that’s so silly. They have just entered Alice’s Wonderland, where everything is as it is because someone says so. In this case, Grimm v. Gloucester County School Board,a girl presenting as a boy wanted to use the boys’ facilities and felt “stigmatized” by being offered a separate, unisex restroom. The judges found the school had violated the equal protection clause because this trans “male” couldn’t use the boys’ restroom when “cisgender” males could. In other words, trans “males” and “cisgender” males are no different from each other and so it is irrational to treat them differently. “It is time to move forward,” pontificated the lead opinion.
Actually, it is moving around in a circle by making words mean whatever you wish. You start with the assumption that “sex” and “gender” are determined, not by x and y chromosome pairs, but by one’s personal decision. So, the fact that you have male sexual organs is pure happenstance, and whether you are male or female is simply up to you: how do you feel about the matter? So “males” are of two, interchangeable, fungible varieties: trans (those who happen to have female genitalia but wish they hadn’t) and cisgender (those who happen to have male genitalia and are satisfied with that).
Presumably, these judges went to high school themselves and took biology, but one would never know it. In rejecting the school’s rather obvious argument that nothing could change the girl’s basic or “biological” gender, the concurring judge went so far as to claim that it would be impossible for the school to prove that the girl was really female, as evinced by the very case:
[A]lthough [the trans “male”] was born physically female and had female genitals during his time at [the school], he also had physical features commonly associated with the male sex: he lacked breasts (due to his chest reconstruction surgery); had facial hair, a deepened voice, and a more masculine appearance (due to hormone therapy); and presented as male through his haircut. The [school] conveniently ignores all these facts, other than to claim that [his] chest reconstruction surgery “did not create any biological changes in [the trans “male”], but instead, only a physical change.”
One would have thought the school’s position was transparently obvious, rather than a cause for criticism. Maybe the answer is that the judge missed the biology class about the x and y chromosomes. But surely he must have seen one of those crime shows on TV that determine a person’s sex by examining their DNA.
And then there’s the judges’ upside-down world of “choice.” As is clear to any child of Alice’s age, newborns have a sex at birth (actually, from conception). They don’t choose that sex; it is preassigned and immutable. Birth gender becomes a “choice” in the judges’ retelling, though, by their referring to it as the “assigned-at-birth” gender, leaving the inference that some nurse or doctor arbitrarily picked male or female for the newborn, which leads to the conclusion that it should be the child’s right to decide what gender s/he really is (after all, how could the doctor really know?). This latter choice about how one feels about one’s gender is then described as not a choice, but “immutable.” This, despite the fact that over 90 percent of adolescents with gender dysphoria ultimately select their actual, biological gender.
Welcome to Judicial Wonderland. We’re falling down the rabbit hole.