Justice Gorsuch’s role in Fox News’s transgender madness

The headlines in the conservative media made it clear that Fox News has blundered again: It is forcing pro-transgender policies in its workplace. Much as I’m always happy to join in on pile-ons, whether against radically pro-transgender workplaces or a network foolish enough to fire Tucker Carlson, this time, you really can’t blame Fox News. Instead, you need to blame Supreme Court Justice Neil Gorsuch.

Those who share my outrage about the way the mental illness of so-called “transgenderism” is being imposed upon every aspect of American society were angry when it emerged that Fox News had incorporated pro-“transgender” policies into its employment handbook:

Fox News employees are allowed to use bathrooms that align with their gender identity, rather than their biological sex, and permitted to dress in alignment with their preferred gender. They must also be addressed by their preferred name and pronouns in the workplace.

These are just a few of the policies outlined in the company handbook, dated January 2021, a copy of which was shared with The Daily Signal. Fox also offers to help employees come up with a “Workplace Transition Plan” to ease their gender transition at work.

The revelations comes amid conservative consternation at Fox Digital’s use of activist language like “gender affirming care” in stories on its website, as well as the site’s consistent use of female pronouns for biological males like TikTok celebrity Dylan Mulvaney and swimmer Lia Thomas (formerly known as Will Thomas).

On the one hand, I agree with Matt Walsh’s take:

On the other hand, thanks to Justice Gorsuch’s 2020 decision in Bostock v. Clayton County, employers must now cater to the whims of people with sex-related dysphoria.  Gorsuch is a “textualist” who believes that the words in a statute override the legislature’s manifest intentions. This approach, although it sounds like the opposite of activism, is, in fact, pure judicial activism.

One of the long-standing rules of statutory interpretation is that, when parties have a differing take on a statute, the court must examine the legislature’s intent. In the Bostock case, the legislation at issue was the Civil Rights Act and, more specifically, that portion requiring employers to refrain from discriminating against protected classes.

Under Title VII of the Civil Rights Act of 1974 at 42 U.S.C. §2000e-2(a),

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. (Emphasis mine.)

In 1964, “sex” had a very specific meaning: The female half of the biological gender binary; that is, those with XX chromosomes who belonged to the category of people who have eggs and carry babies. Indeed, in 42 U.S.C. §2000e(k), which defines terms, the term “because of sex” is explicitly written to refer to the biological possibility of pregnancy:

The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e–2(h) of this title shall be interpreted to permit otherwise.

If there’s any doubt as to the meaning of the word “sex” in 1964, Rep. Howard W. Smith, a Southern Democrat who opposed the Civil Rights Act, tossed the concept of biological sex into the act to show his disdain for doing away with Jim Crow laws. He wanted to cause trouble for Northern Democrats who were less enthusiastic about women’s rights than about racial minorities’ rights. Neither he nor anyone else even thought about homosexual rights. Further, the concept of transgenderism didn’t even exist except as an uncommon diagnosis in the DSM (the psychiatric standard for diagnosing mental disorders) regarding sex dysphoria.

None of that concerned Gorsuch. Just as leftist judges use the made-up idea of “substantive due process” to write into the Constitution leftist values neither the Founders nor subsequent legislators and Americans ever intended, Gorsuch used “textualism” to bring into a 1964 law the faddish post-modern trend of “remaking” biological sex:

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Thanks to this decision, employers must cater to the “transgender” mafia. And an employer like Fox, even though conservatives don’t like it, is associated with the Republican Party, so it knows that the EEOC has a big target painted on its corporate backside.

Image by Andrea Widburg





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