In Bostock, Gorsuch reaches the semi-mystical conclusion that any word or concept having to do with “sex” may constitute “sex discrimination."
The Obama administration has ordered schools and government facilities to give transgender individuals access to facilities such as bathrooms and showers on the basis of the gender which they identify, regardless of their biological sex. Ed Whelan has already shown in a series of persuasive posts how wrong the administration is in it its interpretation of Titles VII and IX of the Civil Right Act. Here I want to discuss another mistake: the impulse to nationalize rules about complex matters of social norms that are better handled by private and decentralized ordering.
Permitting transgender people to use facilities involves issues of respect for individual difference and the privacy of personal space. I am not sure how I would resolve these issues myself. It may well depend on circumstances, such as context and place. But we will make more sensible resolutions of these issues in the long run, if the businesses and localities are allowed to make their own decisions for private and public facilities respectively. New social norms are likely to be shaped for the better, if individuals and groups are allowed to act freely without government intervention outside of preventing force and fraud.
The contrary view is that this is a matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act. Indeed, for the left on such matters it is always 1964.
But the analogy to racial discrimination of that era is misleading.There the problem of discrimination against African Americans was an enormous one, the issue had long disturbed the body politic, and most importantly, the government had failed to protect from physical violence those who wanted to embrace non-discrimination. It is obviously very different today, where Target and other companies line up voluntarily to announce new transgender policies much like those that the administration wants to impose by fiat.
Moreover, one’s race is more clearly irrelevant to any human activity than one’s biological makeup. Hence, as Ed Whelan also notes, the Obama administration itself doesn’t take a consistent position in favor of transgender rights. It has left itself wiggle room to determine that not all transgender individuals can always play in the competitions with the sex with which they identify, presumably because of possibility of unfair competition.
Nationalizing this issue not only prevents percolation of social norms, it also polarizes the nation politically. It then becomes harder to compromise on more consequential issues, ones that are really national political problems, like entitlement reform or foreign policy. We are not yet so prosperous or safe that we can afford to divide ourselves unnecessarily. Intensifying a culture war makes us weaker for more important battles.