When ‘Follow the Science’ Suddenly Doesn’t Apply

3 Comments for “When ‘Follow the Science’ Suddenly Doesn’t Apply”

  1. posted by Jorge on

    I’d be happier if the law simply permitted individual institutions (including states) to make their own decisions on the subject, but I suppose that’s a pipe dream.

    “In August, federal District Judge David Nye of Idaho cited the Supreme Court decision when he struck down that state’s first-in-the-nation law prohibiting transgender girls from playing on women’s athletics teams.

    Nye wrote in the argument that ‘other transgender women are not excluded from school sports because they can simply play on the men’s team is analogous to claiming homosexual individuals are not prevented from marrying under statutes preventing same-sex marriage because lesbians and gays could marry someone of a different sex.’

    Possibly, but that’s not part of the Supreme Court’s reasoning in the recent Bostock v. Clayton County decision.

    My reading of Justice Gorsuch’s majority opinion is that there is protection in workplace discrimination

    between biological men
    and biological women

    when both act like women and say they want to be called women. The employer tolerates the same conduct. What the employer must do under the law is treat men and women the same.

    I imagine most transgender people see the discrimination as

    between social women
    and social women

    when one is born male and one is born female, and that the law must treat all women the same. That is simply not the way the SC decided it. By no means does the decision concede that male-to-female individuals are women.

    “Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee
    identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

    Emphasis mine–I point out areas of possible difference between the generic workplace and school sports.

    The other issue is that the reasoning is too narrow to apply to sports, because the sports issue is more explicitly an affirmative action law. What you give to a male student, you have to give to a female student, even though when it comes to performance men have higher athletic measures than women. Participation in sports is a fringe benefit of attending the school space, either you get it or you don’t, and the reason you’re denied it cannot be your sex. There’s no, “I got unfairly fired from sports” if you got assigned to the men’s team instead of the women’s team, because you got the fringe benefit.

    (What about hostile environment?)

    There’s a certain point where I have to say that a subculture’s determination to turn a subjective experience into a history of invidious discrimination crosses into a break from reality.

    The difference in athletic ability creates a compelling reason to consider each sex’s qualifications separately, lest, as Gabbard’s law argues, the category for women becomes so broad that they are crowded out of the fringe benefit.

    Take the category of “transgender” out of the law and such decisions become fairer, even if no easier.

    • posted by Jorge on

      Emphasis mine–I point out areas of possible difference between the generic workplace and school sports.

      (I probably should have bolded impermissible instead of unmistakable.)

  2. posted by Ricport on

    First, I’ve never understood why gay people are forcibly lumped in with the trans community. I wish them well, but we are different.

    Next, while I believe in freedom of association and also that sex-exclusive teams are not a bad thing, if they really want to do this correctly, why not establish strength/fitness tests to accurately assess who can be on a team?

    And while I disagree with Gabbard on a number of issues, I admire her independent streak and her willingness to break out from the DNC herd.

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