It is, I am convinced, the correct argument, but that doesn’t mean it is actually simple. In fact, taking the opposing argument seriously sheds light on the unspoken assumptions that are fueling the culture war over LGBTQ rights. Justice Alito argued that the question at issue was whether ordinary people in 1964 would have thought that the word sex would cover sexual orientation and gender identity. To Gorsuch, that was not the relevant question—it was what the words because of sex mean, and what they meant 50 years ago. The two questions, asked in good faith, produced different answers.
All three opinions insisted that they were only analyzing the meaning of words, with no reference to the justices’ political or moral views on gay rights. But beneath the verbal jousting, the two sides were expressing dueling views of what sexual orientation and gender mean, and how society should assess them.
Both Alito and Kavanaugh insist that being gay, lesbian, or trans, is something entirely different from being male or female. Take, for example, Gorsuch’s two “materially identical” employees. To Alito, the two are not identical: “In the mind of an employer who does not want to employ individuals who are attracted to members of the same sex, those two employees are not materially identical in every way but sex.” The gay employee is, well, gay—the employer objects to sexual orientation, which, Alito argues, has nothing to do with sex, any more than does, say, the employee’s astrological sign: “If an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios.”
Kavanaugh made the same point in more sober fashion:
Few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination … In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.
Underlying both dissents, then, is this notion that being a gay man is unrelated to being a man, just the way being a Scorpio is unrelated to being a man. By this logic, sexual orientation and gender identity have nothing to do with sexual equality, which is about discrimination against women for being women or against men for being men, and nothing else.
Kavanaugh elucidated this argument with a flourish:
Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.
This claim—that these movements were distinct and based on different concepts, and thus that the two types of discrimination do not relate to each other at all—are echoed by Alito in his separate dissent. In a six-page aside, Alito’s opinion helpfully reminded the Court that, at the time the Civil Rights Act was passed, homosexuality was considered a mental disorder and gay and lesbian people were subject to brutal discrimination. To him, that proves that the statute, in 1964, could not have included sexual orientation (much less gender identity) in its sweep.