Philosophy or Sophistry?

So there’s been a lot of talk about the recent U.S. Supreme Court decision that sexual orientation and gender identity are covered under the American Civil Rights Act. The reason for this is that discrimination on those grounds is actually covered under discrimination on the basis of sex, which is already in the Civil Rights Act. This is according to the majority decision written by a conservative, Neil Gorsuch. I probably would have left the entire topic alone, except for this post by Richard Carrier that talks about how great it is as a piece of philosophy:

I’ve long said some of the best philosophy written is in Supreme Court rulings. It’s always practical, real-world philosophy, that actually affects lives, so it’s also often more important than much that passes for philosophy in academia.

The latest Supreme Court ruling on discrimination based on sexual orientation and trans status, Bostock v. Clayton County, is another example.

Gorsuch’s case hinges on a semantic argument that is totally spot on, but that I had never put together before. Seeing it spelled out, it’s brilliant. And undeniably correct.

Screwy legal decisions don’t bother me too much. The law is an ass and, more importantly, legal considerations might lead to conclusions that are legally necessary but that violate common sense and philosophical accuracy. While they have greater practical impact, no one really thinks that just because a judge says something that it’s necessarily true. But when it’s advocated as philosophy well, then, it’s personal. So I’m going to take it on, because I think the argument is far, far closer to sophistry than to philosophical brilliance.

(As an aside, I also read this post talking about it to get a clearer idea of the entire thing, because Carrier is notable for not really being able to summarize posts properly. I don’t agree with everything at that link either — especially the ideology part — but it does provide another summary of the argument and what it might mean. I’m only going to be quoting Carrier’s post, though).

So what is this purportedly wonderful argument? While sexual orientation and gender identity aren’t explicitly covered in the CRA, sex discrimination is. Gorsuch then applied the standard “but for” test, which is essentially that you keep everything else the same but change only the sex of the individual involved, and see if the behaviour is the same. If it is, then it passes the test. If it isn’t, then it’s discrimination on the basis of sex. So, if you take a man, say, who is attracted to men and change them to a woman who is attracted to men, would they still be fired or not hired? If not, then it’s discrimination on the basis of sex. Or if you take a man who identifies as a woman and change them to a woman who identifies as a woman, would they still be fired or not hired? Again, if not, then it’s discrimination on the basis of sex.

Carrier, as usual, is dismissive of the counters, and I don’t want to get into most of them, but the first big response here is the obvious one whose counters to the counter reveals what Gorsuch is going to have to rely on:

Asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman—we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no … violation has occurred.

To put the counter in the simplest possible terms, it would be Gorsuch asking them if they would still fire him if he was a woman, and them pointing out that of course they wouldn’t because then the person wouldn’t be a homosexual anymore. The idea of the “but for” test is to keep everything constant or, at least, everything constant that matters to the discussion. But here the sexual orientation would clearly change, and the original argument is that they discriminate on the basis on the non-protected sexual orientation, not on sex. So Gorsuch would have to keep the sexual orientation constant as well, and so it would become a homosexual woman, and of course that woman would be fired as well.

This counter should indeed dispose of Gorsuch’s argument, but from what I gather Gorsuch can and did reply with the idea that this is too simplistic an idea of sexual orientation. Sexual orientation is a combination of two traits: what sex the individual is and what sex they are attracted to. To keep all relevant things the same, we need to keep what sex the individual is attracted to constant. And if we do that, then we get the results Gorsuch is relying on.

But this doesn’t work. As sexual orientation is a combination of the two factors, it becomes clear that if you change the sex but not the sexual attraction, then you have explicitly changed the sexual orientation, and vice versa. So if you change the sex the individual is attracted to, you have changed their sexual orientation if you don’t also change their sex. And if you change their sex, as Gorsuch does, without changing who they are sexually attracted to, you have changed their sexual orientation. And whether they are discriminating on the basis of their sex or on the basis of their sexual orientation is the key factor here, so you cannot change their sexual orientation in performing the “but for” test. And the exact same reasoning applies for gender identity: if you change their sex but not what gender they identify as, you have changed the precise thing that is under consideration here. That invalidates the “but for” test.

Gorsuch, then, has to rely on another argument to make his case:

When a qualified woman applies for a mechanic position and is denied, the “simple test” [of the Court] immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. But like the employers before us today, this employer would say not so fast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The “simple test” thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. And because that job seeker would be refused too, this must not be sex discrimination.

Carrier describes it thusly:

To which Gorsuch responds, “While the explanation is new, the mistakes are the same.” He analyzes over several paragraphs why this is a bullshit argument, but really knocks it in the end with an analogy that exposes why an argument for even more sex discrimination can’t be an argument for the absence of sex discrimination—and this maneuver just made me laugh, because it’s a classic internet-style pwn …

Bam. In other words, wink-wink, “I caught what you were doing there. Nice try, Mr. Bigot.”

Describing a philosophical argument as “a classic internet-style pwn” should immediately make one wonder about how good an argument it really is, given how most often those sorts of responses are, in fact, crap arguments.

The problem here is that while these two cases do seem to be paradigmatic cases of sexual discrimination, in the context of Gorsuch’s argument the comparison doesn’t demonstrate that. If discriminating on the basis of conformance to gender roles is not itself illegal, then performing this switch doesn’t show that the company isn’t or couldn’t be doing that. The argument of “We don’t hire people who don’t conform to societal roles” is still valid. In general, most of the time the cases are simply “I won’t hire a woman for that job or a man for that job”, which is what makes it obvious, and we can’t really think of a reason why an organization would ever base it on them not conforming to social roles. For the most part, that’s not a valid consideration, and so we’d be skeptical that that’s the real reason, or that they would apply that generally. This is why using “1950s gender roles” is kinda stacking the deck, because it limits it precisely to that case but it’s hard for us, applying the thought experiment, to think of a case where that wouldn’t be them lying about or rationalizing their position, and it gives us no other way for them to demonstrate their consistency. This also leads to a “damned if you do, damned if you don’t” situation, where if they would hire men as secretaries but not women as mechanics, then that’s clearly sexual discrimination, but if they wouldn’t hire men as secretaries either then instead of that being proof that their standards are consistent on the basis of sex … it’s also clear proof that they are discriminating on the basis of sex. Either way, they would lose, which is not what we would want such an important thought experiment to have as a consequence because we would want to test the issues under contention and ideally have a case where they could prove that they were really only basing it on conforming to standards but that the logic used in the example wouldn’t do it. Otherwise, Gorsuch would have to be asserting that it just is discrimination on the basis of sex regardless of rationale … which doesn’t apply in this case since the rationale is, in fact, crucial here and everyone believes that you can indeed intentionally and willfully discriminate on the basis of sexual orientation regardless of your feelings or knowledge of their actual sex.

So a better example is this: the organization says that they won’t hire women as mechanics not because they are women, but because they insist on reflecting the standards of the community and the standards of the community say that women should not be mechanics. If they tried to prove this by pointing to their not hiring men as secretaries either, this wouldn’t settle the point because either they won’t hire them because they don’t conform to the community standards, or else because they are judging them on the basis of their sex and not their skills or competencies and are lying about. But what if they pointed out that the community standards said that atheists shouldn’t be hired for any position of trust, and so they won’t hire them for those positions either? While most people would be aghast at the reasoning — showing the changing social and community standards — it would clearly show that sex isn’t the factor that they discriminate on. They may be ignorant fools, but they’d be honest fools nonetheless. And if they could find a case where they follow community standards and discriminate on the basis of a trait that isn’t protected, then they’d have the ultimate proof that they discriminate on the basis of community standards and not on sex.

Thus, this example doesn’t help Gorsuch, because at best all it does is cast doubt on the contention, but we know good and well that people are willing to discriminate solely on the grounds of sexual orientation. His examples get us to either doubt that that is their real intention, or an argument that those intentions implicitly include that (gender roles, for example, are based on sexual stereotypes and so would be examples of sex prejudice in and of themselves). But neither of those are obviously true for sexual orientation or gender identity. It’s only Gorsuch’s arguments that would get us the latter, and those arguments themselves are rather weak and, as noted, rely on us accepting his conclusion before he argues for it.

Now, this wouldn’t be as big a deal if Gorsuch’s argument was just that it effectively was sex discrimination, by having an effect of banning people due to, say, a trait associated with sex. Clearly, those traits are indeed associated with sex. But Gorsuch can’t do that, because then he’d have to deal with the legislative intent arguments raised by Alito (that Carrier and others mock in the comments). The argument is that when the legislation was written, that wasn’t how they were taking the aspect focusing on sex discrimination, and further to that many attempts have been made to add these categories to their anti-discrimination protections, many of which have failed. Clearly, the legislators do not believe that discrimination on the basis of sexual orientation or gender identity fall under discrimination on the basis of sex, and never have. To get around this, Gorsuch has to be able to admit this, but insist that they are wrong and that those categories are logically protected by sex discrimination, and so should always be considered as such. That requires a stronger argument than “the traits are associated with sex”. And Gorsuch does not have those stronger arguments.

And while Gorsuch can say that under the law we don’t have to consider the consequences, if Carrier wants to consider this a philosophical argument — particularly a great one — we definitely do. And this argument has some doozies:

First, this eliminates in one fell definitional swoop homophobia and transphobia (making Carrier’s title pointless). After all, Gorsuch establishes that at all times, discrimination — and prejudice — on the basis of sexual orientation or gender identity is always about their sex. So no one is ever simply homophobic or transphobic. By this logic, if someone is accused of either all they have to do is point to this wonderful argument and reply “So I’m not homophobic/transphobic, just sexist”. While many may not be willing to accept that either, it does eliminate homophobia and transphobia from the discussion. More importantly, it makes homophobia and transphobia nothing more than special cases of sex discrimination, raising the question of whether there should be any LGBT advocacy groups outside of the banner of feminism itself. In short, LGBT advocacy gets reduced from its current place as a separate group to a mere subset, with all the implications of that.

It also leads to the rather bemusing note that the so-called TERFs, no matter what good they have done for sex equality in the past, are now reduced from people who might be blinded by societal notions of women and gender and sex to out-and-out and clear and complete sexists. Carrier will probably laugh at that consequence claiming that it finally reveals them for what they are, but it’s an … odd outcome, nonetheless.

But the biggest consequence is what it does for the claim “Trans women are women”. By Gorsuch’s reasoning, trans women are not women. Trans women are clearly men. That’s why when you change their sex from man to woman and note that the behaviour changes it proves that it’s sexual discrimination: they aren’t treating a man the same way they would treat a woman. Without that, discrimination on the basis of gender identity couldn’t be considered discrimination on the basis of sex. If trans women were women, then they’d be treating women in different cases differently, not treating men differently from women. So the argument doesn’t work, or at least doesn’t work in the way Gorsuch imagined it (you could probably try to claim that trans women are women and then try to switch to men to make the point, but that would end up being so convoluted that I can’t imagine it working, as the attempt would probably end up with the same problem that it would depend on which type of “men” you’re talking about). So what this would do is code in philosophy and in law that trans women are men and trans men are women. I don’t think Carrier — and most progressives and trans rights advocates — should be happy with this conclusion.

The argument isn’t a very good one. It’s creative, but ultimately it fails because it relies on a number of thought experiments that aren’t structured properly to make their point. Hardly the pinnacle of philosophical argument that Carrier holds it up as.

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