This is a very early reaction to the question, What will be the implications for women as a class over the next ten or twenty years, of the US Supreme Court case holding in Bostock v. Clayton County (June 15, 2010)?
Here is the holding of the Bostock case, in its simplest and most devastating form. The Court held: "...it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. "
The elevation of rights of LGB people to federal protection do not affect the rights of women to safety, privacy, and bodily sovereignty.
But the elevation of transgender status to the protective sex category of Title VII of the US Civil Rights Act of 1964 (and, by implication and the rule of controlling cases, to all similarly-structured federal protective statutes as well as state statutes) does negatively affect women's rights.
The problem with placing both the rights of transgender biological males and the rights of women within the same legal subcategory, the sex subcategory of Title VII, is that those rights conflict in very significant situations, and the Bostock holding does not provide any mechanism for resolving such conflicts.
Some of the most serious conflicts of rights occur in these locations and situations:
1. Women's sports
2. Women-only spaces such as locker rooms, bathrooms, dormitories, massage and cosmetician studios, retail store changing rooms, and other areas where women may require bodily privacy
3. Preferences of vulnerable women for same-sex assistance in spaces and situations such as nursing homes, hospitals, rape shelters and investigative services, homeless shelter sleeping facilities, and so on.
4. Collection of medical and other vital statistics based on sex
5. Use of reference terms that apply to biological women as a class
How will such conflicts be resolved in the future? As the law now stands, all such conflicts will be resolved against the rights of women.
Existing state laws and federal and state regulations, and new legislation will all be affected by Bostock. The new Idaho law regarding girls' sports cannot stand under the Bostock rule. It discriminates between transgender athletes and non-transgender athletes based on sex. The federal government's new regulations regarding non-enforcement of complaints based on transgender (or LGB) status cannot stand. Regarding participation of trans people in opposite-sex sports, distinguishing rules will not be allowed in the US after Bostock (except for narrow exceptions in Title IX, see below).
There remain, for the moment, the following legal chinks left where women as a class may still hide:
1. There is no legally-enforceable definition of "transgender" in the Bostock case. Women can attempt to be involved in post-Bostock legislative and judicial defining of the term to ensure only people who have demonstrated a sincere and lasting commitment to living socially as the opposite sex are defined as "transgender".
I will repeat the basic Bostock holding, as these few words will become very famous and it is important for them to sink into our consciousnesses. Year after year they will be dragged out to supersede women's rights: "...it is impossible to discriminate against a person for being ... transgender without discriminating against that individual based on sex."
Still, that one big chink remains in the wall: the holding doesn't define the word "transgender".
2. The "bona fide occupational qualification" (bfoq) of Title VII could be strengthened against all opposition to provide some relief for women in employment situational conflicts. The bfoq exception in Title VII, relating to employment, provides in part:
"[I]t shall not be an unlawful employment practice for an employer to hire and employ employees..., on the basis of his [sic] religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise ... 42 U.S.C. § 2000e-2(e)
The chink here is narrow as this provision as it has been very strictly interpreted in caselaw, and would be hotly contested. But possibly there would be legislative or judicial will to continue to provide for elderly female nursing home residents who prefer a female attendant, for instance. Almost 50 years ago, in the 1971 case of Fesel v. Masonic Home of Del., Inc., a lower federal court did exempt a nursing home from hiring a male graveyard-shift carer.
Currently, sex-related bfoqs are seldom enforced by the federal agencies responsible, because the Religious Right's campaign to broaden its own "ministerial exception" permitting religious institutions to discriminate is taking up their full energies. The Bostock decision leaves it to future decisions to work out to what degree so-called "conscientious objector" employers, landlords, and service providers will be permitted to discriminate based on their beliefs. If the exception is extended to permit discrimination against trans and gay people, there is a serious question as to whether such an exception would also have to be made to permit discrimination in providing abortion and contraceptive services to women. Indeed, there's no conceptual reason why expanding the exception would not also mean race discrimination should also be permitted.
3. Certain exceptions already present in Title IX, relating to nondiscrimination in education, could be strengthened or expanded against all opposition to provide some relief for women in educational program conflicts.
Here are the main current exceptions, which are extremely narrow:
"Music Classes
However, in specific programs, even statistics may be argued to result in some sort of discrimination in provisions of services.
5. US federal laws do have certain limitations. They do not affect all social situations but are generally limited to regulating larger public institutions. Many social situations are not covered. Ultimately, the Supreme Court's authority rests on public acceptance of its decisions. If US society reacts strongly against a decision like Bostock, the Court will suffer a loss of authority. But the decision is likely to stand for decades and is not easy to modify in future decisions. On the other hand, the fact remains that Bostock cannot be forced down people's throats (I use that crude metaphor deliberately). It may be modified de facto if not de jure.
International sports events are not controlled by US law. Distinguishing qualifications such as hormonal testing may still be possible outside US sports.
The only institutional way available to revise this US Supreme Court decision is for the US Congress to amend the Civil Rights Act of 1964. A good discussion of the history of such amendments is given in a 2001 article by Leon Friedman in The American Prospect titled "Overruling the Court". A separate protective category for transgender status could be added to existing categories; exceptions could be specified in such a new category or even possibly in the sex category. However, the Democratic Party would oppose such exceptions or changes at the present time.
These are chinks in the male-dominated institutional systems still available to US women, and they are currently places to hide rather than places from which to challenge these systems. Women in public life are under great pressure as always to remain the class with no name or defined boundaries, denied even the respect of being acknowledged as a class of oppressed people.
As the great woman science-fiction writer James Tiptree Jr. wrote in her epic 1973 short story The Women Men Don't See, "What women do is survive. We live by ones and twos in the chinks of your world-machine...Think of us as opossums, Don. Did you know there are opossums living all over? Even in New York City?"
Just one radfem's opinion.
Here is the holding of the Bostock case, in its simplest and most devastating form. The Court held: "...it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. "
The elevation of rights of LGB people to federal protection do not affect the rights of women to safety, privacy, and bodily sovereignty.
But the elevation of transgender status to the protective sex category of Title VII of the US Civil Rights Act of 1964 (and, by implication and the rule of controlling cases, to all similarly-structured federal protective statutes as well as state statutes) does negatively affect women's rights.
The problem with placing both the rights of transgender biological males and the rights of women within the same legal subcategory, the sex subcategory of Title VII, is that those rights conflict in very significant situations, and the Bostock holding does not provide any mechanism for resolving such conflicts.
Some of the most serious conflicts of rights occur in these locations and situations:
1. Women's sports
2. Women-only spaces such as locker rooms, bathrooms, dormitories, massage and cosmetician studios, retail store changing rooms, and other areas where women may require bodily privacy
3. Preferences of vulnerable women for same-sex assistance in spaces and situations such as nursing homes, hospitals, rape shelters and investigative services, homeless shelter sleeping facilities, and so on.
4. Collection of medical and other vital statistics based on sex
5. Use of reference terms that apply to biological women as a class
How will such conflicts be resolved in the future? As the law now stands, all such conflicts will be resolved against the rights of women.
Existing state laws and federal and state regulations, and new legislation will all be affected by Bostock. The new Idaho law regarding girls' sports cannot stand under the Bostock rule. It discriminates between transgender athletes and non-transgender athletes based on sex. The federal government's new regulations regarding non-enforcement of complaints based on transgender (or LGB) status cannot stand. Regarding participation of trans people in opposite-sex sports, distinguishing rules will not be allowed in the US after Bostock (except for narrow exceptions in Title IX, see below).
There remain, for the moment, the following legal chinks left where women as a class may still hide:
1. There is no legally-enforceable definition of "transgender" in the Bostock case. Women can attempt to be involved in post-Bostock legislative and judicial defining of the term to ensure only people who have demonstrated a sincere and lasting commitment to living socially as the opposite sex are defined as "transgender".
I will repeat the basic Bostock holding, as these few words will become very famous and it is important for them to sink into our consciousnesses. Year after year they will be dragged out to supersede women's rights: "...it is impossible to discriminate against a person for being ... transgender without discriminating against that individual based on sex."
Still, that one big chink remains in the wall: the holding doesn't define the word "transgender".
2. The "bona fide occupational qualification" (bfoq) of Title VII could be strengthened against all opposition to provide some relief for women in employment situational conflicts. The bfoq exception in Title VII, relating to employment, provides in part:
"[I]t shall not be an unlawful employment practice for an employer to hire and employ employees..., on the basis of his [sic] religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise ... 42 U.S.C. § 2000e-2(e)
The chink here is narrow as this provision as it has been very strictly interpreted in caselaw, and would be hotly contested. But possibly there would be legislative or judicial will to continue to provide for elderly female nursing home residents who prefer a female attendant, for instance. Almost 50 years ago, in the 1971 case of Fesel v. Masonic Home of Del., Inc., a lower federal court did exempt a nursing home from hiring a male graveyard-shift carer.
Currently, sex-related bfoqs are seldom enforced by the federal agencies responsible, because the Religious Right's campaign to broaden its own "ministerial exception" permitting religious institutions to discriminate is taking up their full energies. The Bostock decision leaves it to future decisions to work out to what degree so-called "conscientious objector" employers, landlords, and service providers will be permitted to discriminate based on their beliefs. If the exception is extended to permit discrimination against trans and gay people, there is a serious question as to whether such an exception would also have to be made to permit discrimination in providing abortion and contraceptive services to women. Indeed, there's no conceptual reason why expanding the exception would not also mean race discrimination should also be permitted.
3. Certain exceptions already present in Title IX, relating to nondiscrimination in education, could be strengthened or expanded against all opposition to provide some relief for women in educational program conflicts.
Here are the main current exceptions, which are extremely narrow:
"Music Classes
Schools are permitted to discriminate for reasons of selecting certain vocal ranges or voice characteristics. This means all-female or all-male choruses may be perfectly legal, without violating the terms of Title IX.
Sex Education
Elementary, middle, and high schools are permitted to conduct separate human sexuality sessions for boys and girls, owing to the unique biological differences in the sexes. This is only applicable to classes (or activities) that deal exclusively with human sexuality.
Physical Education
For physical education (or other school-sponsored activities), students may be separated by gender in sports that involve bodily contact, such as wrestling or football. Also, it is not a violation of Title IX if students are separated by objective performance standards and it results in all-female or all-male groups (for example, males generally have more upper-body strength than females).
However, if this objective performance standard ends up having an adverse effect on any one gender group -- such as excluding predominantly males or females from participation -- then schools must find another standard. The ability to benchpress X number of pounds, for example, should not be the criteria for joining the track and field team.
Whenever any of the aforementioned exemptions results in separate educational or athletic programs, the school must maintain comparable facilities and services for both groups."
See also, for other narrow and specific exemptions, the US Dept. of Education Office for Civil Rights listing here.
4. The legal argument that vital and medical statistics may still be collected based on biological sex is not foreclosed by the Bostock decision, and suits may be brought on this issue. Bostock refers only to employment discrimination, though education and public housing will be expressly covered soon enough. It concerns individual complaints of discrimination, and collection of mass statistics on sex would not seem to be covered. See also, for other narrow and specific exemptions, the US Dept. of Education Office for Civil Rights listing here.
However, in specific programs, even statistics may be argued to result in some sort of discrimination in provisions of services.
5. US federal laws do have certain limitations. They do not affect all social situations but are generally limited to regulating larger public institutions. Many social situations are not covered. Ultimately, the Supreme Court's authority rests on public acceptance of its decisions. If US society reacts strongly against a decision like Bostock, the Court will suffer a loss of authority. But the decision is likely to stand for decades and is not easy to modify in future decisions. On the other hand, the fact remains that Bostock cannot be forced down people's throats (I use that crude metaphor deliberately). It may be modified de facto if not de jure.
International sports events are not controlled by US law. Distinguishing qualifications such as hormonal testing may still be possible outside US sports.
The only institutional way available to revise this US Supreme Court decision is for the US Congress to amend the Civil Rights Act of 1964. A good discussion of the history of such amendments is given in a 2001 article by Leon Friedman in The American Prospect titled "Overruling the Court". A separate protective category for transgender status could be added to existing categories; exceptions could be specified in such a new category or even possibly in the sex category. However, the Democratic Party would oppose such exceptions or changes at the present time.
These are chinks in the male-dominated institutional systems still available to US women, and they are currently places to hide rather than places from which to challenge these systems. Women in public life are under great pressure as always to remain the class with no name or defined boundaries, denied even the respect of being acknowledged as a class of oppressed people.
As the great woman science-fiction writer James Tiptree Jr. wrote in her epic 1973 short story The Women Men Don't See, "What women do is survive. We live by ones and twos in the chinks of your world-machine...Think of us as opossums, Don. Did you know there are opossums living all over? Even in New York City?"
Just one radfem's opinion.
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