It was most interesting, even amusing, to read the new definition of “sex” offered by the Supreme Court of the United States by a majority of 6-3 in Bostock v Clayton County, Georgia No 17-1618, June 15, 2020.
The context was discrimination, and the issue was whether an employer who fires an employee because they were homosexual, or, in another jointly heard appeal, transgender, thereby discriminates against that person because of their sex.
Prohibitions against discrimination because of sex have not always included homosexuality. Sometimes homosexuality is mentioned as a separate instance of prohibited discrimination.
For example, initially the New Zealand Bill of Rights Act 1990 did not specify sexual orientation as being within the prohibited discriminations in s 19, although it did specify sex as being included within those prohibitions. But later, s 19 was amended with the coming into force of the Human Rights Act 1993, and sexual orientation became a specific matter over which discrimination was, and is, prohibited: s 21(1)(m), in addition to sex s 21(1)(a).
There would be no need to specifically add sexual orientation if it was obviously within the prohibition of discrimination on grounds of a person’s sex.
The majority’s paradigm works like this: discrimination on grounds of sex includes dismissal of an employee because of behaviour that would not lead to the dismissal of an employee of the opposite biological gender.
Enough of what the majority said. What are the implications?
In this paradigm, “behaviour” can include many things, not just having sex (or displaying an interest in having sex) with a person of the same biological gender. Various things leading up to full cross-dressing could qualify: fingernail painting, makeup wearing, surgical modification of body shape, wig wearing, suggestive clothing, and so on. Opposite-gender mannerisms and speech characteristics would also fit the paradigm.
Some attention was given to whether an employer’s announced general policy (“We do not hire gays, lesbians, or transgender individuals”) was discriminatory against sex. Alito J, dissenting, agreed with a concession in argument that this would not be sex discrimination. But obviously, if such a person was employed and their infraction of the policy later discovered, then firing that person for that reason would fit the majority’s paradigm of sex discrimination.
Alito J also was concerned with implications under other legislation, and in contexts such as bathrooms and locker rooms. Put plainly the point was, would a heterosexual person be comfortable with a transgender person – entitled under the majority’s opinion to share a locker room - looking at their naked body? Women’s sports were also an area of difficulty, if men who identify as women are not to be given an unfair advantage in that arena.
And, continued Alito J, are segregated accommodations, such as student living facilities still permitted? Similarly, do the segregating practices of some religions infringe the new understanding of sex discrimination?
Various other examples of potential problems were mentioned, including the effect on freedom of speech of the now-apparent obligation to use gender pronouns in a non-discriminatory way.
Lots of fun for lawyers is on the horizon.
The split of the Court is also of some interest. The Bush Junior nominees split (Roberts CJ in the majority, Alito J dissenting), as did the Trump nominees (Gorsuch J leading the majority, Kavanaugh J dissenting) the Clintons (Ginsburgh and Breyer JJ) were in the majority, as were the Obamas (Sotomayor and Kagan JJ), and the Bush Senior nominee (Thomas J) joined the dissent of Alito J.
