Recall that Gorsuch argued that if a man (or woman) were fired from a job for engaging in behavior that would've been acceptable were that employee the opposite gender then their dismissal is a violation of Title VII of the Civil Rights Act of 1964. In other words, the Court's ruling established that firing an employee simply for being gay or transgender is a violation of federal law under Title VII of the Civil Rights Act of 1964 as a form of discrimination based on sex.
Justice Neil Gorsuch wrote the opinion for the six-justice majority. He established a simple “rule” for when sex discrimination occurs under Title VII: if changing the sex of an employee would change the employer’s decision, then the employer has violated Title VII.
The end result may be proper, but Gorsuch's rule is bound to have some very undesirable unintended consequences. Consider this hypothetical situation proffered by attorney Jacob Roth at The Federalist.
[Gorsuch's] Bostock opinion ... provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII. Even further, Bostock provides the basis for the argument that it is a violation of Title VII to enforce sexual harassment policies that are mandatory under Title VII.
Imagine an employer that has locker rooms for its employees. There is a male locker room and a female locker room. Each has a communal changing area and a communal shower area. The men in their locker room change and shower in front of one another. The women in their locker room do the same.
The employer also maintains sexual harassment policies that are mandatory under Title VII. These policies prohibit harassing behavior that creates a hostile or offensive work environment, as is federally required.
One day, after reading the Bostock opinion, a male employee who does not identify as transgender walks into the women’s locker room. The women are disrobing in the communal changing area and some are showering. The man disrobes in front of the women, then showers. The employer immediately learns of this and informs the male employee that he has violated the employer’s sexual harassment policies and is fired.
The male employee sues the employer for sex discrimination under Title VII based on the Bostock standard that the decision to fire him for his actions would have been different if he were a woman. The male employee argues that all he did was enter the women’s locker room, disrobe, and shower, and that female employees do those exact actions all the time without penalty.
He argues that his performance of the same actions got him fired only because he was a man doing them, which constitutes sexual discrimination under Bostock in the same way that if a man and a woman at a company are both attracted to men, but only the man is fired for it, then the company has sexually discriminated against the man.
Roth goes on to consider an objection that Gorsuch's defenders might raise, but points out that the objection is easily dispensed with. The problem is that the Gorsuch rule permits a man to do anything that would be permissible for a woman to do and vice versa. If it would be permissible for a female high school coach to mingle in the locker room with her female high school athletes then Gorsuch has made it permissible for a male to do likewise.
It's a maxim among conservatives that ideas have consequences, and it's astonishing that a putatively conservative Justice would've been so oblivious to the implications of this idea.
