...Gorsuch remarked that his judgment did not reach the matter of bathrooms and locker rooms, for those situations were not contained in the case at hand. But Justice Alito quickly pointed out that the holding had been, after all, that it was wrong to turn away from anyone – to withhold a job or a benefit – because of an aversion to a person’s sexual choice of changing genders. That judgment would presumptively apply to all instances of that discrimination, and indeed the first case has already been pressed on the side of a transgendered high-school girl, seeking admission to a boys’ bathroom....
...Gorsuch had not exactly said that Stephens had changed his biological sex. My friend Gerard Bradley distilled things in this way: In the biological sciences, “sex is binary, innate, and immutable.” And it goes beyond anatomical differences to penetrate to the level of cells.
But “gender identity,” as he says, “denotes a fluid belief system based on cultural constructs, emotion, experiences.”
Gorsuch and the Court can preserve their detachment on the question of whether a man can become a woman only if they simply ignore that inescapable, objective truth of what constitutes “sex.” ...
Now for that which is truly frightening.
Gorsuch did not have to say anything conclusive on that question of whether Stephens had in fact become a woman. He could simply use his alchemy of “textualism,” working on the Civil Rights Act of 1964, and settle on this limited point: that if Stephens came to regard himself as a woman, that is an understanding that the rest of us are obliged to respect when it comes to “discrimination on the basis of sex.”
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