Justice Gorsuch Creates Shockwaves by Redefining the Meaning of “Sex” in Title VII

This article is reprinted with permission by the author and was first published on Dean Broyles Blog. Dean Broyles ESQ is a Constitution Law Atty with the National Center for Law & Policy in Lodi, California and a friend f the Center for Garden State Families.

There is nothing textualist or originalist about creatively changing the meaning of words by judicial fiat, whether they are terms in the U.S. Constitution or the U.S. Code. But that it precisely what the ill-fitting successor to Justice Antonin Scalia did earlier this month in Bostock v. Clayton County, Georgia. Justice Neil Gorsuch, joined by five of his liberal friends, including increasingly left-tacking Chief Justice John Roberts (who gave us the atrocious Obamacare ruling), displayed the unchecked hubris to do what even the U.S. Congress had been unwilling to do—with the strokes of the pen, Gorsuch categorically redefined the meaning of “sex” in a federal statute to including gender identity (transgenderism) and sexual orientation (homosexuality).

Such legal faux pas are clearly not new. Over the past 50 years we have seen this tragically play out before. Privacy becomes baby-killing (abortion). Marriage becomes a same-sex relationship. As of last week, sex (gender) becomes homosexuality and transgenderism. This month’s ruling represents the culmination of the sexual revolution. Clearly, the hippies have won. Their latest “victory” will have far-reaching legal and cultural impacts, probably even more so than Obergefell v. Hodges (same-sex marriage).

How did Gorsuch do it? After freely acknowledging that in 1964 when Title VII passed outlawing workplace discrimination, “sex” simply meant biological sex as in the distinctions between male and female, he proceeded to pull the rug out from under that plain meaning. He did so by cleverly arguing that homosexual and transgender employees were actually terminated “because of sex…..” since a homosexual male employee wouldn’t be terminated if he were a female attracted to men and a transgender female wouldn’t be terminated if “she” were a biological female dressing as a woman at work. True, but that’s beside the point.

Gorsuch acknowledges that this interpretation may burden religious employers, but he appears hold out hope that the Free Exercise Clause, Title VII exemptions for religious organizations, RFRA and other similar protections will be sufficient for religious organizations. But it is more probable that this new federal edict incorporating SOGI into Title VII will not stop there but will metastasize to the dozens of other federal laws addressing sex discrimination, including Title IX (prohibiting discrimination in higher education). He also ignores that fact that redefining sex to include SOGI lends cultural weight to the idea that people maintaining biblical beliefs about sexual morality are hopelessly backward bigots.

The ruling was a postmodern work befitting an increasingly post-truth America. The fatal flaw of progressives and most post-modernists is that they nearly always confuse change with actual progress. They blindly deconstruct without realizing they are actually destroying that which is good, true, and beautiful. Stepping away from fixed definitions and objective reality allows them to creatively play with ideas and attempt to manipulate the very nature of reality—to destroy and re-make the world into their subjective and ever-shifting image. On that score, Gorsuch gets a “A” for creativity and hubris, but an “F” for judicial restraint (staying in his lane).

What’s the big deal? Isn’t this just the law “evolving” with the times towards a groovy value-free utopian future? No, this is the unmistakable naked usurpation of nearly everything we have established and valued in our democratic republic. Why? Because we are a nation of laws, not men.

First it violates the separation of powers. As Alito and Thomas pointed out in a blistering dissent: “There is one word to describe what the Court has done today: legislation.” Constitutionally, it is the sole role of the U.S. Congress, not the courts to pass legislation. Congress passed the Civil Rights Act in 1964. When it inserted “sex” as category of discrimination it indisputably meant one thing only—gender (male and female). If Title VII is to be now changed to include sexual orientation and gender identity, it is only the responsibility of the House and the Senate to do that, not Neil Gorsuch and five of his hip friends wearing black robes. In fact, Congress has tried and failed for the past 45 years to explicitly add sexual orientation, and more recently gender identity, to Title VII and other federal statutes. The federal judiciary simply does not have the authority to expand or contract a statute by reinterpreting its words to mean something other than was written and intended. Judges are appliers of the law only, not cultural oracles reimagining our evolving future.

Second, it undermines the rule of law and confidence in the judiciary. Citizens should be able to rely on straightforward and reasonable interpretations of the U.S. Constitution, statutes, and ordinances without fearing that creative judges are going to whimsically negate or expand the meaning of words to mean something completely different and unpredictable.  The hallmark of textualism is that the words of a law, Justice Scalia insisted, “mean what they conveyed to reasonable people at the time.” As Alito pointed out in his searing dissent, “In 1964, ordinary Amer­icans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination be­cause of sexual orientation, much less gender identity.” If judges are given the power to creatively (or by strict literalism) redefine the meaning of words or phrases, then our constitution, laws and words themselves become essentially meaningless. The law then essentially becomes whatever a judge says it is. This is legal positivism run amok. As Kavanaugh stated, “Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.” Cultural and legal anarchy are not far behind, since whoever is in power can arbitrarily dictate the law and control everyone else. There is a right way to amend a statute and a wrong way. The way that Gorsuch did it here was clearly wrong.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.”

Yet, Humpty Dumpty sits high on his elitist wall, preening about his “enlightened” and ever-so-clever wordplay edict, ever so proud of his God-like power to create and impose new transformational realities on everyone. Tragically, what has come crashing down is truth and freedom and, with it, our Constitution. This is how liberty dies, one oppressive SCOTUS decision at a time. It’s a very good thing that our hope is in God and the fact that He wins in the end (and we with Him)! This is because all the king’s horses and all the king’s men may not, in our lifetimes, be able to put our once-free republic back together again.

by Dean Broyles ESQ.

For More Information: you can read the NCLP’s powerful amicus brief in Harris Funeral Homes v. EEOC (one of the three cases decided under Bostock) filed at the Supreme Court of the United States on behalf of Scholars of Family and Sexuality (including Professor Mark Regnerus, Ph.D.) here.