"Sex": It Ain't What It Used To Be

Friends, while the media concentrates on the really important issues -- like putting all policemen in jail, and giving all gangsters free puppies and a skeleton key to the city -- a quiet revolution has taken place in how our society views "sex" and gender.  You know what I'm talking about.  It's been painfully obvious for a while that leftists no longer believe in the male-female dichotomy that has undergirded Western and non-Western conceptions of sex and gender for millennia.  Well, that's not quite true: they still believe that women are good, and men are bad, but otherwise they like to suggest that sex and gender are way more complicated than just...boys and girls.

We've known that liberals feel this way, but it came as something of a shock to learn that the Supreme Court has drunk the Kool-Aid as well.  What's more, they recently transposed this very modern take on sex and gender onto the Civil Rights Act of 1964, mandating federal protection for gays and transgenders in the workplace.  Quite literally, liberals and "woke" Justices have turned our understanding of "sex" on its head, and the world will never be the same.

That's the subject of my latest article.  The implications for society and for gender relations are troubling enough, but I concentrate on the implications for the Constitution and the rule of law.

See if you agree with my slant on things...

The LGBT Community's Win is America's Loss

Recently, the Supreme Court decided that the Civil Rights Act of 1964, which prohibits employment discrimination based on “sex”, also prohibits discrimination based on a person's sexual orientation or status as transgender. Two nominally conservative Justices, Roberts and Gorsuch, joined the Court's liberals in expanding federal protections for the LGBT community. Even Justice Kavanaugh, who voted in opposition to the ruling, effectively apologized for doing so and congratulated gay and transgender Americans for their historic “victory”.

While reasonable people can disagree about whether it is appropriate or necessary for federal law to prohibit such workplace discrimination, especially when in many cases local and state laws, not to mention corporate policies and procedures, already do so, the fact is that the Supreme Court's ruling perpetuates a disturbing trend: it does violence to the law itself and to the principle of the rule of law, by twisting the original and clear meaning of Title VII of the Civil Rights Act.

The framers of the Civil Rights Act of 1964 were unambiguous: they criminalized discrimination based on “sex”. A person's sex was understood at the time to be biologically determined and would fall into one of only two categories: male or female. In the mid 60s, attitudes towards homosexuality and towards “transvestites” and “cross-dressers”, as they were widely called at the time, were almost uniformly hostile. These may be considered “identities” now, but in the 1960s they were considered criminal acts and/or clear signs of mental instability. Thus, no one in Congress would have proposed legal protections for homosexuals or transgender persons, and, if they had, such legislation would not have passed. 

These are facts. One can like them or dislike them, but one can't will them out of existence.

The Supreme Court's recent reinvention of the meaning of the Civil Rights Act therefore relies on the doctrine that the original wording of the bill, and the intent of the lawmakers who passed it, doesn't matter. What matters is the uses that contemporary society wishes to make of a law adopted 56 years ago, and contemporary society, and especially its political, cultural, and economic elite, is virtually unanimous in viewing discrimination against gays and transgender people as obscene.

Therefore, since it would be nice if the Civil Rights Act of 1964 had abolished discrimination on the basis of sexual orientation and/or transgender status, the Supreme Court made the decision to pretend that it did. “Sex” now means, well, whatever we want it to mean, and in this case we want it to mean that gay and transgender Americans will receive the same protections in the workplace as women do. Case closed.

(To the objection that the Supreme Court merely broadened the concept of “sex”, I would reply that anyone who is fired for having sex in the office break room, or for having sex with his boss's wife, will quickly find that the broad-mindedness of federal judges has distinct limits.)

The bigger problem here is that, if no law or Constitutional provision has a fixed, static meaning, then every aspect of our legal and Constitutional system operates at the sole discretion of black-robed social justice warriors (for that is what most judges have become). We can expect that the law and the Constitution will be used time and time again to advance a “progressive” agenda, which the American people may or may not be ready to embrace, and which their elected legislators have declined to advance themselves. 

This is a trend that began as early as the 1950s, when the Supreme Court mandated the desegregation of public schools nationwide, based primarily on the re-purposing of the 14^th Amendment. Those efforts gathered steam in the 1960s and 70s, when a whole host of political and social reforms were pioneered by activist judges. Now, with the Supreme Court's endorsement of gay marriage in 2015, and its recent prohibition of employment discrimination against gays and transgender Americans, the beat goes on.

The widespread celebration of the LGBT community's “victory” must therefore be tempered by a rising concern that the integrity of our legal and Constitutional system has been forfeited on the altar of social progress and political expediency. After all, passing controversial legislation enshrining the rights of new groups is hard. Conjuring those rights into being by judicial fiat is comparatively easy. That, however, begets an entirely new and potentially worse problem: the easier we make it for unelected judges to revolutionize our way of life and overturn the will of the people's representatives, the more often they will do it.

We may someday find ourselves living in an America where the views of the voters and of the men and women in Congress are irrelevant, and the Justices of the nation's highest court reign supreme over all of us. In fact, that day may already be here. 

In that case, we had better hope that Justices Roberts, Gorsuch, and Kavanaugh are familiar with the saying “Absolute power corrupts absolutely”, because self-restraint may be the only hope we have of preventing a judicial tyranny from taking root on American soil.

Dr. Nicholas L. Waddy is an Associate Professor of History at SUNY Alfred and blogs at: www.waddyisright.com. He appears weekly on the Newsmaker Show on WLEA 1480/106.9.

And here it is at American Greatness:

https://amgreatness.com/2020/06/19/the-lgbt-communitys-win-is-americas-loss/