I’m not sure what you mean. But in 1964 few people knew that gender could misalign with sex. Most (certainly legislators) assumed they were the same, and would blame mismatches on debauchery or insanity. The scientific discovery of the distinction (as opposed to folk discovery; many cultures throughout history understood the distinction before it was established by science; as with many things folk wisdom often predates scientific knowledge) began in the 1970s in the field of psychology. It has since been extensively established by a vast body of published scientific research.

Technically the distinction was known to science before, in the field of anthropology, but only in the study of “non-Western” cultures. It took psychology to point out we had the distinction all along and were simply denying it. Western concepts of gender have subsequently been studied by anthropology as well, which has its own body of literature on the subject.

In short, in the 1960s, what everyone thought sex was, was almost always actually gender (e.g. who wears pants, who wears makeup, who wears jewelry, who uses certain tonal dialects and body language, who is “feminine” and who is “masculine,” and so on). When someone discriminated based on sex in 1964, they almost never knew the actual sex of the person in question; they simply assumed they knew their sex, by observing their performed gender. So all along, really, most of it was actually gender discrimination.

Now we know those aren’t the same thing. What people “see” as gender mostly has no connection to sex at all (e.g. dress, cosmetic, demeanor, voice, preferences), and even what does (e.g. visible effects of hormones on appearance and behavior) is on a spectrum and not a binary (e.g. there is no “female” and “male” body chemistry but a spectrum along which we associate one end as more masculine and the other as more feminine, but one actually can naturally fall anywhere on that spectrum, including in the middle, which would be “neither” or “both” depending on how you define terms; and with HRT, one can even choose where to fall on that spectrum now). Hence most of what we identify as gender is sociologically constructed and not biological (e.g. when the Founding Fathers wrote the Constitution, it was men who wore stockings, makeup, wigs, and ribbons in their hair).

On the history of this scientific discovery, Scientific American has a short bibliography. I summarize much of the subject, with links to associated science in Attack of the Lycanthropic Transsexuals!

What they had in mind is what we now do with police departments, e.g. tactical units like SWAT teams and city police and county sheriffs etc. A citizen militia operated like sheriffs and deputies today: they were armed only when responsible to an elected official, and their behavior and options were responsible to the electorate; they had to be trained; they had to qualify; etc.

The Second Amendment was not about individual rights. It was about forbidding the federal government from disarming citizen militias. But those militias were still (and were thus expected to be) organized and controlled democratically by their respective communities (the same way police departments and sheriffs departments are). The Founders had no conception of it being otherwise; they’d be surprised and appalled by what we’ve done with their phrase “well regulated militia.”

So, for example, if we applied the Second Amendment today as written and intended, it would mean the federal government can’t come in and disarm the LAPD. Or the National Guard (which though federally operated is actually under states’ control and the amendment gives states the right to maintain their respective Guards; the federal government can’t come in and disband them or take them away). It would not mean local communities could not disarm individuals or unregulated subgroups (unregulated militias).

For a more accurate history of what the actual environment was the Second Amendment was written in and for, read Misinformed by Thomas Verenna. This includes examples of Founding Fathers disarming unauthorized militias like the Koresh compound. They well knew what the Second Amendment did and did not protect. SCOTUS has forgotten (or rather, is disinterested in knowing).

Oh no doubt. As I said in the article, ideological sophistry is usually what we get. “But sometimes…”

Moreover, when the second amendment was passed, cannon and warships existed. So it is not as if they couldn’t have imagined weapons of war being covered by it; to the contrary, it never occurred to them that they were authorizing individuals to own artillery and warships. At the time they wrote that, their idea of people’s militia was a trained force under democratic control, with civil armories, not individual persons arming up independently of any oversight or responsibility.

That being the case (if that was in fact the case) I was trying to envision what they had in mind with respect to a “people’s militia under democratic control”.

If we are not talking individual persons and not talking about a military branch then the only example that I can think of off the top of my head would be David Koresh (American Cult leader – Waco seige of 1993).

Am I far off? Is there a better example?

Oh yes. Gorsuch is, after all, a conservative. And a textualist. The best conservative justices typically have been. And even some of the worst ones (e.g. Scalia). Conversely, however, liberal justices are never originalists.

Even this conservative opinion piece that tries to argue liberals should be originalists plays on an equivocation fallacy: conflating textualist attention to original intent in determining the meaning of words, with the whole originalist philosophy that attaches entire unique ranges of meaning to sentences not ever possessed by the words in them.

But you’re wrong about the second amendment. A strict textualist would never claim that the words of the text, “a well-regulated militia,” are meaningless, or that the textual fact that it says “people” and not individual persons can simply be ignored as irrelevant.

Moreover, when the second amendment was passed, cannon and warships existed. So it is not as if they couldn’t have imagined weapons of war being covered by it; to the contrary, it never occurred to them that they were authorizing individuals to own artillery and warships. At the time they wrote that, their idea of people’s militia was a trained force under democratic control, with civil armories, not individual persons arming up independently of any oversight or responsibility. The Supreme Court speciously started changing the text to mean what the founders never imagined. That’s a violation of both originalism and textualism. But as I said, many a SCOTUS ruling is ideological sophistry rather than a principled demonstration of sound philosophy or analysis.

Your questions, BTW, are among many reasons the ideological sophistry that gave us a completely different meaning for the second amendment than ever intended and than even the words in it entail lands us in a bizarro land of illogicality. There simply is no coherent way to read the second amendment anymore. SCOTUS made sure of that. It’s now just whatever their ideological whims are, are what the amendment means now. To hell with textualism or originalism.

Karlan said a bunch of things I don’t think are sound or clear reasoning. As did various others in briefs; and I don’t judge questioning by justices because it’s not necessarily indicative of their thinking, but of what they want to know. That’s why my article is about what SCOTUS ruled, not what various people tried arguing or what questions got asked in a hearing (much less in garbled, repeatedly interrupted arguments like this one, where nothing coherent can even be discerned).

Note this ruling is solely about Title VII, which is solely about equal employment opportunity, and is thus based entirely on whether you can do the job or not, which therefore only applies to jobs for which sex is irrelevant. And the cases being ruled on only pertained to employment opportunity, not accommodation. So neither sports nor bathrooms were relevant.

-:-

So, what follows has nothing to do with my article. But since you asked…

(1) Note even Title IX (passed in 1972) does not prohibit sex-based discrimination in sports, but only in public education; and “separate but equal” is established as a legal accommodation of that law.

Historically, “separate but equal” was rejected for racial segregation only because of the fact that the “equal” part was actually false, and not only in practical fact (as usually it also was), but also in part because of the adverse stigma created by compelling racial separation. Which means “separate but equal” is legal—as long as the “equal” part is factually the case. Which it is for gender, but not for race, owing to how we socially treat the two categories.

And that’s a relevant point here…

Title VII specifically says segregating in a way that “adversely affect[s one’s] status as an employee” is illegal, which is why gender segregated bathrooms remain legal—as a happenstance of cultural reality, it creates no social stigma for publicly-identifying-women and publicly-identifying-men to use womens’ and men’s bathrooms.

Which actually means Title VII is on the side of trans advocates who say singling them out (even so much as asking what “sex” they are) by compelling bathroom use contrary to their expression violates Title VII. As the law is written, forcing them to adhere to a segregation policy that “adversely affect[s their] status as an employee” is illegal, and as a matter of material fact, “sex based” (rather than gender based) bathroom policies do “adversely affect [their] status as an employee” and thus are illegal…or at least, so any honest textualist would have to agree. And I suspect serious textualists like Gorsuch know this and this is why SCOTUS has been avoiding bathroom bill cases like the plague.

Such it is for the law (or at least, what it will be if ever it gets ruled on by an honest court); but that’s a separate question from “what’s a good idea” or “what’s best” or “what laws we should have.” Insofar as the Civil Rights Act applies to bathrooms, trans advocates are legally correct, but SCOTUS has avoided ruling on it. If you want to know what I think we should do socially with respect to bathrooms, that’s no longer a discussion of the law, and is an even larger digression from the present topic. But I’ll say something about it anyway later on. Just remember, it’s completely unrelated from the question of “What would Gorsuch have to rule as to present law on this point if he remains consistent.”

This is sort of what Karlan was clumsily getting at, but as she was on-the-spot and kept getting interrupted, she couldn’t recall or quote the court precedents regarding the “adversely affect status” clause (e.g. in racial segregation rulings that overthrew “separate but equal”) so as to articulate the point I just made as would pertain to her client (who, as she noted, isn’t the trans plaintiff). And this never comes up in Gorsuch’s ruling because it was never germane to what he is ruling on (which is employment decisions, not bathroom rights).

(2) Title VII contains two specific carve-outs for acceptable discrimination. One for religious organizations, which Gorsuch says his ruling does not change the status of: they still get to discriminate all they want. The other is as also laid out in Section 2000 (or 703) subsection (e): “Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin” are exempt from the law.

This would mean, for example, strip clubs, acting roles, dance roles, etc. In such professions sexual distinctions between applicants is actually part of the purpose of the job and thus is not “irrelevant to qualifying” for the job and thus is not prohibited by Title VII. Sports fall under this same carve-out.

Insofar as what you are doing is hiring for a men’s football team, being a man is a requirement of the job (unlike, say, being a mechanic or a secretary), just as would be in hiring for an all-male-revue strip club. And the employer can define that any way they want; so long as they are explicit about it in hiring. Just as I can put an ad out for a job in which I list as a qualification “must have a penis at least seven inches long.” If that’s what I’m explicitly hiring for, and I have a legitimate reason to be (say, I’m hiring a model or shooting a porno), then having a seven-inch penis is a relevant qualification. It’s thus not discrimination under Title VII. Ditto any requirement a sports business wants to declare. So long as they can show it is relevant and not something they just made up.

Note that Title IX, passed in 1972, only pertains to public education, which must accommodate both sexes equally in sports, but may do so with a “separate but equal” accommodation (again, as I just noted, the “separate but equal” policy for racial segregation was not overthrown because it was illegal, but because it was false: the accommodations being made weren’t in fact equal; and discrimination cases today under Title IX don’t move forward by arguing against “separate but equal” but by challenging the “equal,” which is a purely factual dispute). Title IX does not apply to private clubs (or indeed, even schools that receive no federal moneys) or commercial sports businesses (which is most of what people mean by “sports” today: a commercial for-profit enterprise, just like a strip club or a dance revue; even college sports has mostly become that in practice).

This means, under the law, the same law Gorsuch’s ruling is on, sports teams can discriminate by sex in any way they want. As long as they can make an honest case that it’s relevant to the product they are selling (and because it’s a performance art, they almost always can). And so I am certain Gorsuch himself would have said, had that been the issue he was adjudicating. The parallel case working its way up the lower courts between men’s and women’s soccer (or football in foreign parlance) thus turned not on whether men’s and women’s teams were legally required to desegregate, but whether they were legally required to treat men and woman employees the same (which then hinged on a massive complex of debated facts regarding what “same” means; and can only and should only be decided on that basis).

So, as a matter of law, the answer to “what do we do about trans athletes” the answer is: pretty much whatever the hell owners and leagues want to do. Title VII simply doesn’t apply.

So, again, that’s a separate question from what I think owners and leagues “should” do or what would be “best” to do, neither of which is a matter of law.

(BTW, yes, this means leagues could have a “white’s only” sport if they wanted, if they made publicly explicit that that’s specifically what they were selling somehow; I think that would be legal even under Title VII, it just would be so damnably unpopular no sane business would bother offering such a product. So it tends not to be an issue.)

-:-

(3) As to the separate question of “what we should do,” rather than what the law says we have to do, my view is always the same as for every socio-political question under the sun and above it: the correct policy must be based on actual evidence; facts, not assertions or feelings based on fantasies and fears rather than realities.

On bathrooms, personally I don’t think we should have gendered rooms at all. Objectively that has always been super silly. Everything should be unisex. And we should design bathrooms intelligently around that concept (there is plenty of science to go on for doing this). And we should have cultivated a culture that is comfortable with that long ago. But until that happens, the matter still should be addressed based on actual evidence, not “concerns.”

And the actual evidence abundantly shows allowing people to choose the bathroom they prefer works out fine. Wherever you are comfortable, go there. And just be polite to everybody there, same as anywhere. None of the “concerns” actually come to fruition—at least, any more than for desegregating bathrooms by race, that is (“bigots were made uncomfortable” is not a relevant outcome measure). Meanwhile, we’ve always had desegregated bathrooms by sexual orientation—dudes get to check dudes out in the men’s room, and the ladies get to ogle ladies in the ladies’ room, and it’s been that way for hundreds of years and the world hasn’t descended into chaos…or indeed, even noticed.

Fact of the matter is, no one has to take a DNA test to get into a restroom, nor show their genitals or have them inspected to access a bathroom, so segregating them by sex isn’t even logical. No one actually knows anyone’s sex in a bathroom, certainly not genetically, but nor even anatomically (which is not the same thing), except at a urinal, and the people who use urinals by definition don’t care who checks them out there—else we wouldn’t even have urinals as a technology.

So my advice to people who are freaking out over where the penises and vaginas are is, “Get over it. You don’t know. You don’t need to know. You pretty much never will know. It makes no difference whatever to your life. Please go find a real problem to fret about.”

-:-

(4) With regard to sports, I’m astonished we aren’t just categorizing players by their pertinent competitive capabilities and attributes the way we do in men’s boxing (e.g. you don’t have featherweights fight heavyweights), and not giving a shit whether they have a penis or vagina. But since the public cares so much about watching only people with vaginas kick a ball, or only people with penises tackle each other, I guess you can go on selling that silly product if you want to. Indeed, it’s even sillier than that: the penises and vaginas have to be “natural born” or something, an even weirder nitpick. But hey, I never really understood people obsessed with these things. If that’s what you want to buy, they might as well sell it to you.

So when it comes to trans athletes, you just need to ask, as a customer, why do you only want to watch people with penises do things? Or why do the penises have to be natural? Or why does a chromosome, a microscopic molecule, matter? And so on.

For example, let’s say you care about only watching people with the same hormone levels compete with each other. Pick any random mixture state and range to obsess over; maybe history matters (e.g. “how long” and “since when” they’ve maintained those levels). Doesn’t matter. Just pick what it is. Then make that the requirement. Sex doesn’t even have to be involved. Sex can give you an edge (a natural chemistry is less work to maintain than an artificial one), but as long as everyone is, within your desired parameters, the same along the dimension you care about, why can’t they compete?

Or if it’s bone density, then make it that. Or if it’s blood cell count, then make it that. Or any combination. Just decide what it is you want, and sell and buy that product. There is no rational reason to make “sex” even relevant.

In a rational world, that’s what we’d be doing by now. But alas, we live in a nonrational world. But I’m not going to complain about that other than to keep pointing out how silly it is.

Struggling to be charitable and to find some threaded needle here as to why we should care about “sex” and not attributes, something that makes any rational sense, the best I can come up with is that because we have a sexist society that treats men and women differently, it can matter emotionally to an audience to see how women do in competitions with each other rather than having to compete with men.

It’s not even a matter of “men have advantages in some sports,” because we already have stages of capability among men in sport, and thus could have already organized our sports this way. Minor leaguers are often inferior to major leaguers; and if we stopped calling them that and instead just labeled them “low mass and high mass” leagues, or something more accurately descriptive, and allowed anyone to audition and compete, we might see a larger balance of women in the low mass leagues than in the high mass leagues. Much like in bowling and golf, where some leagues allow handicaps to allow lower performing players to compete with higher performing players, we could have leagues that set test requirements for entry that ensure similar levels of ability, and then tier the leagues accordingly (just as we do in boxing), and thus give women plenty of teams to play on.

So even this idea as to why we need to do it differently is a stretch. Yes, I guess, it makes sense to have gender-segregated sports because we have a sexist society that needs to see them for cathartic reasons; and because the way we’ve illogically organized our leagues so that they all have ability parameters too high for women to meet has the silly consequence that any other mechanism than sex-segregation would deprive women of sport altogether. But really, we could be doing better than this as a society.

As to the practical matter of how one would integrate trans athletes into our existing silly system, I would suggest you base your judgment on actual proven statistical facts, and not mere theories and anecdotes.

A lot of it has to do with simply what you want as a customer, and confronting why you want that and not other things. And then trying your hardest to disprove your answer before assuming it’s sound (that’s practically the scientific method in a nutshell).

But also a lot of it is simply getting the facts right, based on real evidence, and not rumors or suppositions or “battle by anecdote.”

I suggest looking at the actual facts, think objectively rather than traditionally, and listen to actual trans advocates. Look at real science, or support additional science on the question before deciding.

And ultimately don’t talk about sex. Talk about what you really are (supposedly) interested in, like “I only want to watch people with a certain body chemistry and a maximal muscle mass run a marathon,” or whatever it is. That this will make you look silly, might lead you to realize, it kind of is. But that’s the only way society can make progress in how it thinks about the world.

None of that matters for interpreting the law. There are thousands of examples of the Court agreeing unintended consequences of a law are valid; that’s so settled a standard of Supreme Court decisions now, it practically defines almost every case before it.

And that despite fringe holdouts (always arch-conservatives—like Thomas) who advocate for the interpretive philosophy you are referring to here (called originalism).

It seems to me that in some cases the textualist position could work in favor of conservatives as well.

Take for example the right to bear arms. Obviously our founders could not have foreseen the invention of automatic assault weapons that go beyond what an individual might need to protect oneself and his/her family. But no matter since the Supreme Court is not concerning itself with “originalism”. Correct?

But I wonder then based on that why it should be illegal for me to possess weapons of mass destruction. Why can’t I make the constitutional argument that it falls under “arms” which it does and is therefore protected under the constitution?

And if the government has the right to dial it back for WMD then why can’t they dial it back for individual ownership of automatic assault weapons?

But I was not persuaded by her comments on these other questions. Her legal distinction–between harmful and non-harmful discrimination–did not seem to be based on any workable standard, particularly when applied to what she called “idiosyncratic” preferences, a term under which appeared to include dress code requirements and addressing someone as “Mr.” or Ms.” These kinds of things, she said, do not cause harm and are not even discriminatory under the law. Why that is, she did not adequately explained, and I’m concerned that hers is not the position that LGBTQ advocates actually are advancing. Maybe what she said was sufficient for this legal case–whose outcome I approve–but there is still social controversy and disagreement on these other questions, where I may be less inclined to go along. (I believe, for instance, that biological sex should determine the sports team that one is allowed to play on and the bathroom that one uses). I’m curious to know what your views are.

The argument audio and transcript can be found here: https://www.supremecourt.gov/oral_arguments/audio/2019/17-1618. The line of questioning I’m referring to starts at ~8’05. I’ve copied some of the text of the transcript here, for convenience.

———

JUSTICE SOTOMAYOR: Do you think we need exemptions for those BFOQs? It’s not just the — physical fitness standards for different sports, but big issue right now raging the country is bathroom usage. Same-sex bathroom usage.

How are those cases going to be dealt with absent a congressional exemption other than BFOQ?

MS. KARLAN: Well, I think the way that they get dealt with is everybody agrees if you have men’s bathrooms and women’s bathrooms, that’s because of sex. It treats men one way, it says go to this bathroom. It treats women another way, it says go to this bathroom.

Then the question becomes is that permissible to do? And if I could just begin with an example that I think will show why this is so. When I got up, the Chief Justice said to me, “Ms.” Karlan, I am willing to bet any amount of money I have that when Mr. Harris gets up, he is going to say “Mr.” Harris.

He has treated us differently because of sex. But that’s not discriminatory because neither of us has been subjected to a disadvantage. And as this Court said in Burlington White against North — Burlington Northern against White, what the statute means when it says “discriminate against” is to cause an injury and requiring people generally to use separate bathrooms is not an injury.

JUSTICE GORSUCH: Well, I’m — I’m not sure that maybe how they would see it. And to what — to what extent should we take that into account? And same thing with a gender-specific uniform requirements.

MS. KARLAN: Sure.

JUSTICE GORSUCH: How would you deal with those, given that — that at least those affected might think that they’re suffering a harm?

MS. KARLAN: So there’s no categorical rule about these. For example, the fact that all of the men sitting at counsel table knew that they had to wear ties today and I was free not to didn’t cause an injury. On the other hand, even the dissenters in the Second Circuit said, if the Court said women who come to argue should argue in Hooters outfits and the men should wear –

JUSTICE GORSUCH: No –

MS. KARLAN: — ties –

JUSTICE GORSUCH: — we’re not -we’re not — I mean –

MS. KARLAN: I know.

JUSTICE GORSUCH: — we can talk absurd examples –

MS. KARLAN: No, but I can –

JUSTICE GORSUCH: — or we can talk real world examples.

MS. KARLAN: I will give you a real world example, which is, it probably doesn’t violate dress code to require men and women in business events for the women to wear skirts, but if you required a telephone lineman to wear a skirt –

JUSTICE GORSUCH: No, no –

MS. KARLAN: — while she’s still –

JUSTICE GORSUCH: I understand that. That’s not what I’m getting at. And you know what I’m getting at. The funeral homes example’s not a bad — the case that we’re about to take up is — is — is more in the — in the realm of my question.

MS. KARLAN: Okay.

JUSTICE GORSUCH: You can offer me help if you want to.

MS. KARLAN: Yes, yes. No, I’m trying to offer you help. What I’m trying to say –

JUSTICE GORSUCH: All right. What I’m — what I’m suggesting, counsel, is that there are male and female bathrooms, there are dress codes that are otherwise innocuous, right, most — most people would find them innocuous. But the affected communities will not. And they will find harm. And how does your test deal with that one way or the other? That’s what I’m asking you to address, if you’d like to.

MS. KARLAN: Yes. My test says that you have treated the people differently because of sex, which is what we are asking you to hold here. When you treat a gay man who wants to date a woman differently than a man — woman who wants to date a woman, that — that’s discrimination.

Then you get to what I’ve said, which is you have to ask whether a reasonable person under these circumstances would be injured by the imposition of the particular sex-specific world. So when the Chief Justice calls me Ms., I am not injured. When I go to a — when I –

JUSTICE GORSUCH: You are not, but another –

MS. KARLAN: It — it –

JUSTICE GORSUCH: — person might be.

MS. KARLAN: Right. And the question –

JUSTICE GORSUCH: Are they reasonable or not? And — and I’m — I’m — I’m just -I’m wondering, how do you decide those cases?

MS. KARLAN: An idiosyncratic preference does not void an otherwise valid dress code or bathroom rule.

…

JUSTICE GORSUCH: Is it idiosyncratic for a transgender person to prefer a bathroom that’s different than the — the one of their biological sex? Is it idiosyncratic for a transsexual person to wish to dress in a different style of dress than his or her biological –

MS. KARLAN: No.

JUSTICE GORSUCH: Sex? Okay. So the answer to your question is — the question then, at the end of the day, if I understand it, is that those are acts of discrimination under Title VII as you understand it?

MS. KARLAN: Yes, although I think you’d — you’d be better advised to ask the question to someone who — who is representing someone who is transgender. I am representing someone who is gay.