Because it keeps coming up in both my real-life and online conversations, I’d like to state, and explain, my position on Aimee Stephens versus Harris Funeral Homes.
For those who don’t know, this case was brought before the Supreme Court in a bundle with two other cases, often referred to as “Bostock.” In the case in question, a male-born person informed the funeral home he worked for that he identified as a woman, and thus wished to wear the “women’s uniform” to work. The funeral home wanted Stephens to adhere to the dress code for men, and fired him. Women’s Liberation Front filed an amicus brief siding with the employer. The judge ruled in favor of Stephens. The judge’s decision was the correct decision for women’s rights.
People keep sending me various breakdowns and explanations of WoLF’s arguments, like this interview with once-WoLF member and lawyer Kara Dansky. They assume I disagree with WoLF’s stance because I don’t understand it. This is not the case. I disagree with WoLF’s stance because it is wrong.
For the record, I’ve met Kara, I like Kara, and Kara is often right. But let’s take a look at her brief explanation of WoLF’s position as articulated in the above interview. I’ll use her comments as a segue into my position on the matter.
My position will roughly fall into three main points:
- This case is none of our business
- WoLF’s position relies on thought crime
- The judge’s decision was based on sex, not on “gender identity,” and thus is a win for sex-based rights
This case is none of our business
If radical feminists are going to score any wins for women’s sex-based rights, they’re going to need to do two things. One, they’re going to need to overcome the growing societal misconception that “radical feminist” equals “anti-trans.” It does not. Radical feminism is focused on preserving the sex-based rights of women and girls. If someone else’s interests are compromised in the service of preserving those rights, trans or not, that’s a side-effect of our cause, not a goal in and of itself.
Two, they’re going to need to focus on what’s important and what, speaking strategically, can succeed. Because of the above misconception, alongside the usual disregard for women’s voices in culture and politics, radical feminists can secure a very limited amount of time and attention from legislators and the public. Thus, we must not squander that.
For example, WoLF once weighed in on a case in which a high school girl lost a scholarship because a male-born person who identified as a girl placed before her in an athletic competition. This is a great use of radical feminist resources. It is both an issue for which the public is likely to be sympathetic, and an issue in which a girl was directly impacted. The public is more likely to care whether a talented girl lost a scholarship in an unfair competition–after all, half of us were once girls, and many people have daughters–than if a grown-ass man wears a dress to work.
What Aimee Stephens wanted to do, however misguided, did not directly impact any women or girls. We should not be interested in stopping this guy. We should not even notice this guy. And we certainly should not be sending the message to society that the vitriolic lies of trans activists are correct, and that we are, in fact, obsessed with opposing whatever transgender people happen to get up to.
WoLF’s position relies on thought crime
Let’s get to the information that’s widely regarded as what makes WoLF’s position defensible, and what I’m often told I’m probably misunderstanding.
At around 8:59, Kara says:
“What this case could have been about [was that the] employer’s policy of having sex-specific dress codes at work is unconstitutional or illegal in some other way. That could have been a very interesting argument to make. But that wasn’t the argument. “
Radical feminists generally agree that women should be allowed to wear pants to work. Radical feminists generally agree that Price v Waterhouse was decided fairly.
Because of these radical feminist positions, and because Kara thinks an argument about the constitutionality of the dress code “would have been a very interesting argument,” we can infer, or at least hope, that WoLF thinks the funeral home’s sex-based dress code is objectionable in the first place.
From a radical feminist perspective, it is an objectionable policy.
After reviewing a policy that’s objectionable, then, WoLF then goes on to weigh in on how the employer should apply its objectionable policy.
What’s next, radical feminists weighing in on how pharmacists can apply the objectionable policy of refusing to dispense birth control?
So there’s the first problem. WoLF aligned itself with an objectionable policy and the employer who created it.
Next, Kara says:
“But that wasn’t the argument. The argument was in fact that Stephens was factually and legally a woman.”
This brings us to my second problem. Either men should be allowed to wear dresses to work, or they shouldn’t. Holding that it’s ok for men to wear dresses to work while thinking certain thoughts (to quote Kara: “I am a man but I prefer the uniform designated for women”), but that it’s not ok for men to wear dresses while thinking other thoughts (“I am factually a woman”), is legally untenable–as well as silly. Likewise, arguing that employers can/should modify their dress code policies for men who think one thing, but not for men who think another, is also untenable.
And to refer back to my first point, it’s also an absurd thing to expect legislators or the general public to wrap their head around, much less agree with–for most people, the clothing choices of gender-nonconformists do not gain or lose credibility based upon the wearer’s thoughts.
The judge’s decision was based on sex, not on “gender identity,” and thus is a win for sex-based rights
Luckily, the Court was thinking more clearly than the members of WoLF were. It ruled in favor of the employer, and if you read the deliberation, you’ll see that its members repeatedly noted that it was not necessary to focus on “gender identity” as a new category, because discrimination against a transgender person collapses into a form of discrimination based on sex, already protected by precedent and by Title VII. The Supreme Court tends to do this. It makes decisions in the most conservative way possible, relying on precedent, and not introducing complexity where it is not needed.
As Neil Gorsuch put it:
“If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”
Note the judge spoke of sex at birth, ensuring that his reference to biological sex cannot be confused with some conception of Stephens’ current “gender” situation. As an aside, he even used “identified” instead of “assigned!”
Or as Wikipedia puts it:
“the Court ruled… that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination ‘because of sex’ as prohibited by Title VII. According to Justice Neil Gorsuch’s majority opinion, that is so because employers discriminating against gay or transgender employees accept a certain conduct (e.g., attraction to women) in employees of one sex but not in employees of the other sex.”
At around 27:13, the interviewer asks Kara to comment on the “clash of rights” between women and transgender people. To this, Kara says:
“I don’t think it helps to think in terms of [one group against another]… it’s just women and girls getting to do the things we want to do… for thousands of years globally men have been deciding what we get to do in the law.”
That’s a fantastic explanation of what radical feminists ought to be fighting for. But WoLF’s involvement in this case calls that into question.
“Oh really?” I hear a transgender activist saying. “Then why care what Aimee Stephens wears to work? Sounds like it’s one group against another, after all, even when there are no women and girls being denied the right to do anything.”
And that transgender activist would be right.
If WoLF really wanted to weigh in, and really wanted to preserve the sex-based rights of women and girls, as opposed to inhibiting the harmless shenanigans of men, it should have sided with Stephens, arguing, as the Court more or less ultimately did, that he was being reprimanded as a male behaving in a way incongruous with the behavior expected of males.
Now to address one more objection I often hear: this decision will not be well understood and will be used to justify other, more insidious decisions.
Yes, that is true. That’s true because society is currently hell-bent on eradicating the rights of women and girls, and they’ll be happy to use this and everything else they can find in the service of doing so.
But that doesn’t mean the Court’s decision was wrong.
