Arnold Ahlert / Jun. 22, 2020

SCOTUS-Enabled Totalitarianism

The Court’s decision on “sex” opened the door for the evisceration of the women’s movement.

“You can’t just proclaim yourself a female and be able to compete against women. There must be some standards, and having a penis and competing as a woman would not fit that standard.” —tennis great and long-time homosexual-rights activist Martina Navratilova, December 2018

“‘Woman’ is not an idea in a man’s head. ‘Woman’ is not a pink brain, a liking for Jimmy Choos or any of the other sexist ideas now somehow touted as progressive. Moreover, the ‘inclusive’ language that calls female people ‘menstruators’ and ‘people with vulvas’ strikes many women as dehumanising and demeaning.” —author J.K. Rowling, June 2020

Whether an increasingly impotent women’s movement realizes it or not, last Monday’s 6-3 Supreme Court ruling has made biological reality irrelevant. While anyone with an ounce of integrity would know that when Congress passed the 1964 Civil Rights Act, Title VII’s prohibition of sexual discrimination meant sex in the biological sense, a majority of justices swept aside thousands of years of biological reality in favor of progressive ideology.

In short, the Court conferred upon itself both legislative powers and scientific expertise. Legislative powers Congress itself conspicuously declined to exercise, and scientific expertise that required the complete abnegation of a condition still defined as “gender dysphoria” among leading entities in the mental-health community.

Justice Neil Gorsuch, who wrote the majority opinion, epitomized the Orwellian logic — and rank hypocrisy — necessary to reach such a decision. The same justice who insisted the ruling was based on “plain statutory commands” long before transgenderism was even a topic of conversation is the one who insisted, “[Laws] are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost.”

The latter statement was made in 2018. Two years later, Gorsuch and five other justices have subjected the entire nation to the “latest judicial whim.”

Moreover, as columnist and Amherst College professor Hadley Arkes points out, Gorsuch’s opening statement regarding Harris Funeral Homes v. EEOC — whereby a man hired by a funeral home was terminated due to the consternation his decision to behave and dress as a woman caused for grieving families — is nothing short of astounding. “He said that Aimee Stephens, the one who had been known to the world and his own wife as Anthony Stephens, had ‘presented as a male’ when ‘she first got the job,’” Arkes writes. “Without the slightest strain, Gorsuch had simply incorporated as his own the predicate of Stephens’s claim: that he had in fact become a woman.”

The implications? “For the Court to come down on his side the judges would have to do nothing less than confirm, as a matter of controlling fact, that in the eyes of the law Stephens was indeed a woman if he regarded himself as a woman,” Arkes adds. “And the effects would instantly radiate outward: Stephens’s colleagues would be obliged to accept his definition of himself, and the pronouns that came along. If they did not, they and their employer could be accused of sustaining a hostile work environment and put themselves at legal hazard.”

It gets worse. Harris was one of three cases brought together to reach this decision. The other two, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, involved discrimination against homosexuals. In other words, the Court failed to make any distinction between homosexuality and transgenderism. “The Supreme Court combined the cases for purposes of the decision — and there was a very ‘good’ bad reason it did so: Gorsuch’s reasoning collapses when the case of a ‘transgender’ individual — enclosed in quotes because the court leaves that term undefined — is inserted in the parade of hypotheticals the majority used to justify its decision,” columnist Margot Cleveland explains. “Rather than analyze the questions separately, Justice Gorsuch conflated the two separate classifications, analyzed homosexual employees (or applicants), and then added a throw-away conclusory sentence to extend the reasoning to transgender people.”

That “throwaway sentence” will have enormous implications going forward. There was a reason Title VII permitted sex-specific policies. Without them, explains columnist Kate Anderson, “women could be compelled to compete with men for job opportunities under the same physical strength requirements,” and more women-owned businesses competing for Small Business Administration loans would be shouldered aside “if those funds are distributed according to gender identity.”

And then there’s sports. Though Title IX, passed as part of the Education Amendments of 1972 to the 1964 Civil Rights Act, prohibited sexual discrimination regarding “any education program or activity receiving Federal financial assistance,” it didn’t specifically mention sports. However, it became best known for its requirement that men’s and women’s athletic programs in high school and college be equally funded.

If the Court’s reasoning is extended into this realm, there is nothing to stop men claiming to be women from dominating women’s sports. A case filed by three Connecticut high-school girls whose track meets were dominated by “transgenders” competing as women addresses that reality. By contrast, a lawsuit has been filed by the ACLU of Idaho, challenging that state’s Fairness in Women’s Sports Act that bans biological males from participating in female sports.

Which side will ultimately prevail? Given the tenor of the Supreme Court — combined with the now-revolutionist determination of agenda-driven progressives and the unseemly cowardice of those who should stand against it — Ms. Navratilova, et al, will likely be compelled to endure the reality that “having a penis and competing as a woman” will be the new standard, no matter how “dehumanising and demeaning” J.K. Rowling, et al, think it is.

Yet this decision has far more ominous implications. “A man who intends to have no surgery and take no hormones may now secure himself a Gender Recognition Certificate and be a woman in the sight of the law,” Rowling explains. “Many people aren’t aware of this.”

Such insanity is possible due to the UK’s passage of the Gender Recognition Act in 2004. That act allowed people to change their legal gender, but it required a medical process to do so. Activists have been pushing to eliminate that process in favor of a self-identification system — as in “I am what I say I am” — but are currently meeting resistance from Boris Johnson’s administration.

What about America? The Supreme Court has apparently embraced that very same self-identification system, and simultaneously precluded Congress — as in our duly elected representatives — from making any contrary decision on the subject. Yet by ruling that sexual identity is based on nothing more than self-declaration, irrespective of biology and chromosomes, SCOTUS has moved way beyond sex. If one aspect of reality itself can be based on nothing more than self-declaration, why not other aspects — or every aspect?

What could better enable totalitarian control than a “fog of uncertainty” surrounding everything?

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