The Supreme Court's Attack on Women

Matthew Hoy
By Matthew Hoy on June 17, 2020

Earlier this week the Supreme Court released a decision in the case of Bostock v. Clayton County, Georgia which effectively reads the prohibition on discrimination in employment based upon a person's "race, color, religion, sex, or national origin," to mean "sexual orientation or sexual identity" as well. The decision is an attack on women, whether many of them realize it yet or not.

The case was notable because Justice Neil (But!) Gorsuch and Chief Justice John Roberts joined with the court's liberals to read the law passed back in 1964 as having included sexual orientation and transgenderism way back before anyone had ever heard of the latter.

I don't want to delve too deeply into the sexual orientation aspect of the decision except to say that, like it did in Roe v. Wade, and Obergfell, the Supreme Court has once again taken something out of the give-and-take of the democratic process and decided to make law on its own. It's likely that at some point relatively soon a prohibition on discrimination on the basis of sexual orientation would've been added to the law, but that it would also have been accompanied by some degree of protection for religious employers and institutions.

The Attack on Women

The basis of Gorsuch's argument that "sex" in Title VII always included "sexual orientation" and "sexual/gender identity" is couched in a "but-for" argument. That is, "but for" the individual in question's "sex," the theoretical employer would not have discriminated against the person in question.

If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer—a statutory violation has occurred.

And then Gorsuch, and the majority, offer this example:

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the em­ployer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

Over at Public Discourse, Ryan T. Anderson shows some examples of the absurdity that such a definition of "sex" requires.

So, under the Gorsuch test, if changing the plaintiff’s sex would change the outcome, then sex discrimination has taken place. To see the concrete implications of such an approach, just look at what Gorsuch’s theory requires: Suppose a female lifeguard is fired because she wears a swimsuit bottom but refuses to wear a top. No doubt, “changing the employee’s sex would have yielded a different choice by the em­ployer” and her sex was a “but-for” cause of the decision. Yet her termination was not sex discrimination provided it held males and females to the same standard: a male lifeguard who exposed private parts would have similarly been fired. That male and female bodies differ—and thus require different swimsuits to prevent exposure—doesn’t amount to discrimination unless one embraces a simplistic theory. And, of course, nothing hinges on whether this lifeguard currently “identifies” as a woman or a man.

Consider another example. Suppose a male employee at a fitness center repeatedly goes into the women’s locker room and is fired. Now it’s true that “changing the em­ployee’s sex would have yielded a different choice by the em­ployer” and that his sex was a “but-for” cause of the decision to fire him. But the negative treatment the employee faced was not sex discrimination provided the employer imposed no double standard for men and women, such as a bathroom policy that imposed the same burden on men and women: each is prevented from entering the opposite sex’s private space. The Supreme Court has embraced a theory of sex discrimination that prevents employers—and schools—from keeping males out of female-only spaces. Either that, or it believes only males with a “transgender status” have the privilege of entering female-only spaces.

And these examples don't even deal with transgenderism really, but these are the absurd results that the majority's opinion logically require.

The Attack on Women's Sports

Just over a year ago, I was guest-hosting Dave Congalton's radio show on 920 KVEC here in San Luis Obispo, Calif., and I spent an hour talking about transgender athletes and womens sports. (You can find the audio at the bottom of this post.) The point I made then about the physical differences between men and women is what prompted the creation of women's sports. Aside from auto racing, there aren't many sports where the world's top women can compete with men. Examples include both Serena and Venus Williams getting clobbered by then-203rd-ranked man Karsten Braasch, the four-time World Cup-winning U.S. Women's National team losing to FC Dallas' under-15 boys squad, and then there's swimmer Katie Ledecky.

Most probably remember her dominant performances at the 2016 Rio Summer Olympics where she often posted world record times with the nearest woman at least half a pool length behind her. Ledecky set a world record for 400m freestyle for the women at that meet with a time of 3:56.46. Ledecky's world record time would have barely qualified her for the 2016 Olympics as a man using the lower, OST/B standard. (If a country wants to have two swimmers qualify for the Olympics, both must beat the faster, OST/A time, in this case, of 3:50.40. If a country wants to qualify only one swimmer, they can make the games under the slower OST/B time of 3:58.51. Countries like the U.S. often send the maximum two swimmers who have met the faster time.) In 2016, at least 40 men posted Olympic qualifying times more than six seconds faster than Ledecky's women's world record. The men's winner, Australian Mack Horton, won the event with a time of 3:41:55. Ledecky's world record time wouldn't have even qualified her for the men's final.

You can go through just about any sport you want to, but simply said the reason why we have women's sports is to offer women an opportunity to compete, fairly, and succeed. Women cannot compete against men at elite, professional levels and win. This is a product of basic biology.

Let's ignore for a moment, once again, that Gorsuch's ruling would require the U.S. Women's National Team to hire a man. ("You mean he can't compete on the women's team because he's a man?" "Yes, it's the women's team." "You're excluding him because of his 'sex'?" "Yes." "Sorry, if you would have allowed him to compete 'but for' the fact that he's a man, you're in violation of Title VII.")

Gorsuch's, and ironically Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor's, opinion that you can't exclude a transgender woman, which is to say, a man, from competing as a woman will surely destroy elite women's sports as well. Two transgender "female" teens are already dominating track events in Connecticut, prompting a lawsuit. Then there's transgender "female" fighter Fallon Fox.

Back in 2014 Fox was fighting her female opponent Taika Brents. It would be “just another fight” for Fallon and Tamika if Tamika didn’t suffer serious injuries before she was TKO’d.

Everything happened in the first round and in the first two and a half minutes. It was messy, it was bloody and it’s not an easy viewing for everybody. Tamika suffered a concussion and a broken skull and Fallon Fox wasn’t stopping until Tamika Brents was finally TKO’d.

After the fight, Tamika Brents gave an interview and she said that she never felt such power and strength at any woman before she was fighting Fallon Fox.

“I’ve fought a lot of women and have never felt the strength that I felt in a fight as I did that night. I can’t answer whether it’s because she was born a man or not because I’m not a doctor. I can only say, I’ve never felt so overpowered ever in my life and I am an abnormally strong female in my own right… I still disagree with Fox fighting. Any other job or career I say have a go at it, but when it comes to a combat sport I think it just isn’t fair.” – Tamika Brents said.

I'd encourage you to watch the video at the link above. This shouldn't be allowed. The "party of science" only holds science in high regard when it doesn't conflict with their political views. Men and women are biologically different.  Unless women begin to stand up, all they've won with Title IX will be stolen from them. The attack on women and women's sports continues.

Here is my hour on transgenderism and women's sports:


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June 2020



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