Jeff Sessions, Bigotry, and the Willfully Obtuse

…but I repeat myself.

It came to light on Thursday that Jeff Sessions — a seventy year-old cisgender white man, former republican senator from Alabama, and current Attorney General of the United States appointed by Donald J. Trump —doesn’t think discrimination against trans folks is unlawful. Excuse me while I am in no way shocked or surprised.

Jeff Sessions speaking at the Values Voter Summit in Washington, DC. Photo By: Gage Skidmore (CC By-SA 2.0).

As he states it in his memo to the Department of Justice informing the department of the change in position, the issue of whether it is lawful to discriminate against trans folks revolves primarily around how to interpret Title VII of the Civil Rights Act. Title VII of the Civil Rights Act bars discrimination on the basis of a number of enumerated traits. “Sex” is one of them. However, it does not explicitly enumerate “gender identity” or a variety of other sex-related concepts.

This is important because ultimately, Sessions’ — and as a result, the Department of Justice’s — interpretation of Title VII as it relates to trans folks boils down to the belief that gender identity and trans status are separate and distinct from sex. As a result, discrimination that results from someone’s gender identity or trans status does not fall under the umbrella of “sex-based discrimination.” Sessions states his position succinctly:

Although federal law, including Title VII, provides various protections to

transgender individuals, Title VII does not prohibit discrimination based on gender identity per se. This is a conclusion of law, not policy.

This position should be familiar to those who have followed Sessions’ actions within the last year, because it’s the same stance Sessions and the Justice Department have taken related to sexual orientation. However, the last sentence of this quote from the memo (emphasis mine) is of particular note.

Sessions presents his interpretation as one that pertains solely to “the statute.” He takes what has been called an “originalist” position that because “sex” at the time the Civil Rights Act became law was not understood to include gender identity or trans status, it should not be re-interpreted to include it today. He argues that because of this, past interpretations of “sex” that included gender identity — notably that of Attorney General Eric Holder’s interpretation in 2014 — had more to do with “policy” than law.

As justification for this position, Sessions says:

Title VII expressly prohibits discrimination “because of…sex” and several other protected traits, but it does not refer to gender identity. “Sex” is ordinarily defined to mean biologically male or female. See, e.g. , Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221-22 (10th Cir. 2007); Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J., dissenting) (citing dictionaries).

The two citations here are interesting because they do little to support Sessions’ argument.

In Etsitty v. Utah Transit Authority the court found that Etsitty, a transgender woman, failed to demonstrate that her termination by the Utah Transit Authority due to her intention to use women’s restrooms was unlawful on the basis of sex discrimination. This case is fascinating in itself, and if you’re interested in the legal rights of trans folks, it’s worth a read. However, the short version is as follows:

Etsitty first argued that “transsexuals” (the term used in the decision) are a protected class under Title VII — because “transsexual identity” (again, how it appears in the decision) necessarily pertains to one’s sexual organs. The court found that this argument didn’t succeed because the “common sense” definition of “sex” pertains to “biological sex” and Etsitty did not provide enough evidence to show how “transsexual identity” was incorporated in the concept of “biological sex” or that it had a biological basis.

On the face of it, this might seem to support Sessions’ originalist position, given the court’s reliance on defining sex in such a traditional “biological sex” manner. However, unlike Sessions, the court held out that further development of our scientific understanding of sex could indicate that “transsexual identity” is either part of “sex,” or biological in nature, at which point it would qualify as a protected class.

Good news folks, both of these things are true.

The Supreme Court of the United States. Photo By: Joe Ravi (CC By SA 3.0)

The other primary argument in the case revolved around whether discrimination against trans folks, even if it doesn’t directly comprise discrimination based on sex per se, comprises discrimination based on sex-based stereotypes. Discrimination on the basis of sex-based stereotypes has been found to be unlawful — most notably in Price Waterhouse v. Hopkins. In Price Waterhouse v. Hopkins, a cisgender woman successfully argued before the Supreme Court that she was passed over for promotion due to her sex — specifically because she did not conform to her employer’s sex-based stereotypes.

However, as far as Etsitty v. Utah Transit Authority goes, the court found that this does not apply. The court found that while use of the women’s bathroom may have been foundational to Etsitty’s identity as a “transsexual,” it found that because she had not fully demonstrated that “transsexual identity” was included in the concept of “biological sex” or that it had a biological basis, Price Waterhouse did not apply.

This conclusion is a non-sequitur. It applies a standard to “transsexual identity” that is not applied to sexual orientation or other aspects of identity related to sex and gender without justifying why that standard applies in the case of “transsexual identity” and not sexual orientation.

However, even aside from the fact that this conclusion was dubious, attentive readers might note that citing Etsitty v. Utah Transit Authority does nothing to support Sessions’ originalist position on this matter. In fact, the court’s comments regarding the outcome potentially changing in the future — through further development of our understanding of sex and biology — seem to undermine Sessions’ position.

The other case, Kimberly Hively v. Ivy Tech Community College, is an even weirder case to cite here.

Kimberly Hively v. Ivy Tech Community College revolved around whether it is lawful for an employer (in this case, Ivy Tech Community College) to discriminate against someone (Kimberly Hively) on the basis of sexual orientation. In this case, the court found that it is indeed unlawful, and that “sexual orientation” is included in the protected class “sex.”

Multiple reasons were given by the majority judges for why this is the case.

The prevailing theme of the majority’s opinions in Kimberly Hively v. Ivy Tech Community College was that society changes all the time, and laws are quite commonly interpreted in the modern context and not as they were originally “intended.” In this context, Oncale v. Sundowner Offshore Services, Inc., a Supreme Court Case regarding sexual harassment, was referenced. In keeping with this case, the majority opinion stated:

the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.

This is the same general idea that was brought up in Etsitty v. Utah Transit Authority: our interpretations and decisions regarding the scope of a law can change as society’s understanding of a concept at hand changes, and as new situations arise. This case was made repeatedly by the majority judges in different ways, many of which involved reference to trans folks.

Finding anything that would support Sessions’ opinion in this case requires that we look to the dissenting opinion — which relied on an “originalist” position in which the game is one of “statutory interpretation.” Statutory interpretation in this context is said to be:

…an objective inquiry that looks for the meaning the statutory language conveyed to a reasonable person at the time of enactment.

However, the idea that we can objectively determine what a “reasonable person” would have thought at some point in the past is laughable. There are far too many variables involved for this to ever be an objective endeavor. Deciding what a “reasonable person” was like at the time the Civil Rights Act was passed therefore requires significant subjective interpretation. If we define a “reasonable person” at the time as a cisgender middle or upper class white male, sure, we might be able to say with relative “objectivity” what such a person would have thought. However, labeling such an individual as our “reasonable person” at the time is itself a highly subjective decision.

I personally think Marsha P. Johnson was a “reasonable person” at the time, and her thoughts on the issue were likely highly divergent from what other “reasonable persons” might have thought. Who’s to say who is correct? Is it an issue of majority? Commonality? What? No matter what standard is decided, determining what a “reasonable individual” would have thought is an inherently subjective task.

This also ignores the fact that the only time this “originalist” position seems to be invoked is when certain folks get frustrated that the law is doing more than they want it to. This was obviously the case during the civil rights movement — where existing laws were construed to exclude anyone who was not white — and at many other points in our history.

As such, it is clear that the sole purpose of the “originalist” position — at least as it is practiced — is to curtail societal progress and to defend bigotry.

This is obvious the moment you ask an otherwise “originalist” individual about their thoughts on gun control. Would “a reasonable person at the time of enactment” of the Second Amendment have considered AR-15s “arms?” Even assuming we could objectively determine what a “reasonable individual” at the time would have thought, it seems clear that society’s understanding of “arms” has grown and changed over time. And yet, very few “originalists” have a problem with the fact that our interpretation of “arms” is anachronistic.

Why is this? To hazard a guess, I would say it is because so-called “originalists” are only ever “originalists” when it directly benefits their worldview. It is a position of convenience invoked only as it serves to affirm the holder’s outlook on the current argument.

When this is understood, we can see Sessions’ “originalist” position for what it is: an attempt to mask his own bigotry and impede the progress of society through a philosophical position that is not authentically held. In other words, Sessions’ position on trans rights, among his many other positions, is willfully obtuse.

At which point, it is incredibly important for society to affirm that an individual’s thoughts and feelings about trans rights do not matter — whether in the past or present. What matters is whether discrimination against trans folks can be considered discrimination on the basis of “sex” or “sex-based stereotypes” which the Supreme Court has already found to be included in “sex.”

The burgeoning scientific and social consensus, along with the existing reasoning laid out in past cases says yes. Denying that conclusion rests on nothing more than bigotry.