About nine months ago I stated that Justices Thomas, Alito, Gorsuch, and Kavanaugh are capable of concocting an anti-transgender opinion that would non-hyperbolically be compared to Dred Scott v. Sandford.
“If every single living American had been surveyed in 1964,” Justice Samuel Alito opined in Harris/Bostock/Zarda on Monday, “it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.”
Not quite as disgusting as Chief Justice Roger Taney’s flippant musing that wrote non-white Africans and their descendants out of the Constitution in Dred Scott, but it would have been enough to end trans people’s relationship with federal civil rights law (if not more) had Alito been joined by more than Justice Clarence Thomas.
Alito declared that “any” notion that the term “because of sex” could have had anything to do with sexual orientation or gender identity “would have clashed in spectacular fashion with the societal norms of the day.”
Alito also boldly asserted that “there is not a shred of evidence” that any Member of Congress would have interpreted the statutory “sex” to include anti-LGB or anti-T discrimination when Title VII was enacted.
How about Robert McClory? He was a Republican who served in the Illinois Senate from 1953 to 1963. In 1955 he voted in favor of S.B. 569, the bill that would become the first incarnation of the state’s trans birth certificate statute. Six years later he voted for H.B. 654, a bill that re-enacted the state’s vital statistics code – including the 1955 trans language.
How about Robert McLoskey, another Republican. He served in the Illinois House during the same period. He also voted for S.B. 569 in 1955 and he also voted for H.B. 654 in 1961.
Even if you disagree with the notion of ascribing pro-civil rights intent to votes for trans birth certificate statutes, each of these men nevertheless was presented with two opportunities to evaluate trans existence to some degree.
By 1964, both men were serving in the U.S. House of Representatives. There, each had two opportunities to vote on the Civil Rights Act of 1964 – first in February and then again in July.
Each time, each one voted yes.
Make no mistake, that does not mean that, via TARDIS or any other time travel conveyance, had one been able to interview either man immediately after their votes on the Civil Rights Act bill they would have clearly articulated a pro-trans spin on those votes. In fact, I’d say the odds would be against it.
“While Americans in 1964 would have been shocked to learn that Congress had enacted a law prohibiting sexual orientation discrimination, they would have been bewildered to hear that this law also forbids discrimination on the basis of ‘transgender status’ or ‘gender identity,’ terms that would have left people at the time scratching their heads.”
The linkage between the two Roberts, the two trans birth certificate bills, and the two Civil Rights Act votes destroys Alito’s (and co-signatory Thomas’s) faux-historical faux-reasoning.
Those two members of Congress did indeed have some idea about both concepts – “sex” and “change of sex” – even if only subconsciously. Their votes prove that assertion in a way that neither all the GOP’s Supreme Court Justices nor all of the GOP Justices’ law clerks nor all of the dark money-funded right-wing think tanks can ever refute. But Alito’s opinion demonstrates yet again the inherent inability of a wide swath of legal and historical professionals to grasp that trans issues received some favorable legal treatment as early as the Eisenhower Era.
“It defies belief,” Alito can utter as often as he wants, “to suggest that the public meaning of discrimination because of sex in 1964 encompassed discrimination on the basis of a concept that was essentially unknown to the public at that time.”
Enactments of the Illinois Legislature are not suggestions; they’re laws.
If Alito’s opinion in Harris/Bostick/Zarda had been the majority, there would be ample cause to dissect its fifty pages of appendices, bursting at the seams with dictionary definitions of “sex.”
Nevertheless, here’s a suggestion for Justice Alito: When next you find yourself in an encounter with law enforcement authorities who might be leaning toward prosecuting you – for what? Who knows.
But in such an encounter, try telling officials, “Sorry, I have my dictionary, and its definition trumps the wording of the law you’re trying to enforce.”
I think we all know how that will go.
And so, Alito and Thomas (and in a separate opinion, Brett Kavanaugh) were not part of a majority.
Lead authorship of the majority opinion fell to Neil Gorsuch, who, following oral arguments, a few bold folks predicted might rule as he ultimately did because of his penchant for textualism.
I wasn’t one of those.
As recently as Monday morning, I thought the best outcome we could hope for would be a 4-1-4 split with the liberals writing passionately for LGBTQ people and today’s three dissenters (together with Gorsuch, still savoring Merrick Garland’s seat) viciously attacking us, with Chief Justice Roberts penning a narrow opinion against us that would deprive us of our rights without having neo-Dred Scott-ism actually carrying the day as a majority holding of the court.
I was wrong. And I’m glad.
But I’m also worried.
Some cheering is warranted, but not as much as I’ve been seeing. Do not trust anyone who says that we no longer need “sexual orientation” and “gender identity” to be hardwired into federal anti-discrimination law.
It won’t take six conservative justices to undo Gorsuch’s majority opinion, only five – and I think we all know what the likelihood is that whoever wins the presidential election in November will be able to appoint at least two new Supreme Court justices before 2025.
Complacency has dealt near-deathblows to the community more than once. One more might finally do the trick.