The Supreme Court did it again. Once, they created a “right” to abortion out of whole cloth. Another time, they redefined the word “marriage”. Now they’ve redefined the word “sex” in such a way that it could very well bleed through to other parts of law and culture.
Is this how a “representative republic” is supposed to work? (Hint: No.)
Mentioned links:
Quote by James Madison
A Dilemma for Gorsuch’s Core Reasoning in Bostock
Alito: Court’s ‘Preposterous’ Trans Ruling Threatens Religion, Speech, Privacy, and Safety

Show transcript
I want to start with a quote from James Madison from Federalist number 62. The Federalist Papers were written to persuade the public at the time of the founding of the United States of the benefits and potential pitfalls of the representative republic that was being proposed. Madison was honest about these issues, and here’s one of them.

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

OK, so the modern paraphrase of that might go something like this. “It won’t matter that the people elected their representatives if those representatives write and rewrite laws such that they are incomprehensible and constantly changing.”  With that in mind, I’d like to discuss the recent Supreme Court decision on Title 7 of the Civil Rights Act.
This section of the law guarantees equal treatment with regards to employment, based on factors including sex. Neil Gorsuch wrote the opinion for the majority where he turns himself into knots by redefining the word “sex” to also mean sexual preference and gender identity. While claiming to be a strict textualist and originalist, he first acknowledges that the writers of the law would not have meant anything other than biological sex. And then he goes on to base his decision on something other than that. But here’s the thing. Sex or gender is the reality of what you are. You have a specific set of chromosomes, period. When you speak of sexual preference, you’re adding what you do to that definition. And when you add gender identity to that, you’re adding how you feel, today, to that definition.
So if Madison were writing today, he might warn as well that if the meanings of words change, that too works against the rule of law. Also, that change was not made by our elected representatives, but by 6 unelected justices. What’s worse, this change to Title 7 is likely to bleed over into how courts interpret other laws.
For example, you may sometimes hear about Title 9. This is a section of what are called the Education Amendments (not the Civil Rights Act, which, to be honest, was news to me as I was researching this). Here’s what it says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” There’s that word “sex” again. One result of Title 9 was equity between male a...