Title VII and Gender

The U.S. Supreme Court recently accepted a trio of cases addressing whether Title VII’s prohibition of ‘sex’ discrimination in employment contexts should focus on biological male and female distinctions, or if it should be expanded and redefined to cover ‘sexual orientation’ or ‘gender identity.’ Lower federal courts have split on these issues. The Equal Employment Opportunity Commission (EEOC) has favored such expansiveness, while the Trump administration is opposed. Thus, our nation’s highest court is poised yet again to reshape the legal landscape on deeply divided cultural issues.”

If Title VII of the Civil Rights Act of 1964 is extended to more categories, its existing tyranny will become more evident.

Legally, to discriminate is to make a choice on grounds other than merit. A proper libertarian will say that, insofar as discrimination doesn’t initiate physical violence on a person, it’s an individual right. Title VII abrogates that right. It declares that certain kinds of discrimination are unlawful or crimes.

Title VII refers to an “individual’s race, color, religion, sex, or national origin.” These are supposed to be objectively determinable. Do they include gender and sexual orientation? That’s the legal question the high court may address or sidestep.

Traditionally, gender refers to male and female. The postmodernists and feminists think of it as a range of many identities. Hence, a web definition today reads

“either of the two sexes (male and female), especially when considered with reference to social and cultural differences rather than biological ones. The term is also used more broadly to denote a range of identities that do not correspond to established ideas of male and female.”

Suppose there are 57 or 63 or 81 varieties of gender and counting. Each one is a state of mind. But so is discrimination a state of mind. Someone who discriminates in employment chooses to deal with someone else on some basis other than merit. Merit is presumed by the law to be objectively determinable, even though it isn’t. Leaving merit aside, this other unlawful basis, which is called discriminatory, is locked up within the mind of the discriminator.

The crime of discrimination in employment depends primarily on motive; it cannot occur or even be defined without referring to motive. This is unlike a crime like murder. A murderer initiates violence and motive is secondary; the only requirement is that the killing not be justifiable by self-defense or some other similar ground. Murder is not a crime because the murderer hated you or wanted your money or felt like running you over that day. The crime of discrimination does depend on motive. To fire someone from a job doesn’t initiate violence. It ends a voluntary contractual arrangement. Discrimination in employment is not in any sense a natural crime or a conventional crime or a crime that has been passed down through the ages.

So now we have 63 genders, let us say, and all but two or maybe three of them depend on the vagaries of a person’s mind. There is no way for an employer, who doesn’t want to hire this person on any number of grounds that are not all objectively determinable and provable, to prove that he isn’t discriminating on the basis of one of these genders. How does the employer even known what this identity is? And why shouldn’t the employer retain his right not to enter an employment agreement with someone whose gender variety he happens to think will hurt his business?

Freedom to define one’s gender is open to anyone. You can declare yourself a variety of Martian toad, if you like, and that’s your gender. Does this entitle you to be hired by someone? Does this entitle you to make the employer prove to the satisfaction of a court that he has not discriminated against you on the basis of your gender?

The questions of gender and sexual orientation, the LGBTQIAPK and counting thing, are variations upon the categories already in Title VII. The existing categories already contradict basic freedom of choice, freedom of contract, and freedom of association.


8:51 am on August 18, 2019