I Wish This Was So.

The conservatives are nervous and we are nervous for the same reason… the Supreme Court. Because of the mixed signals come out of the court, they are afraid that they will lose their draconian powers to persecute us while we are worried for our lives. The right-wing British Telegraph writes,

The Supreme Court’s transgender revolution is warping the law

The fatal flaw in the Bostock decision has opened the floodgates for progressive legal activism

By Adrian Vermeule

22 August 2023

In 2020 Idaho enacted the Fairness in Womens’ Sports Act which barred biological males from participating in women’s sports. Last week, a federal court of appeals covering Idaho, California and other western states, and long a font of progressive innovation, declared the law unconstitutional on equality grounds. 

In an area with the approximate size, population and economic heft of two United Kingdoms, there is now, in effect, a constitutional right for biological men to play as women even in domains, like womens’ sports, specifically constructed in order to provide biological women with equal access and equal opportunities. The Supreme Court may overturn the decision, although that is hardly a foregone conclusion. But even if that does occur, the Supreme Court has done little in other cases to stem the flood-tide of decisions from lower courts declaring new transgender rights. 

In the past few years, the Court has refused to hear a court of appeals decision that obligated schools to allow transgender students to use whatever bathrooms they wish, and another decision that, by circuitous reasoning, held that “gender dysphoria” enjoys legal protection against disability discrimination. Any number of other cases are bubbling around the lower courts, and although some of the decisions reject the novel claims, the overall trend favors transgender rights.

Of course they have a villain in mind a conservative justice who didn’t toe the conservative agenda. Justice Neil Gorsuch. In the case of Bostock v. Clayton County in 2020 when he followed Supreme Court precedence in the case of Price Waterhouse v. Hopkins from 1989 where they ruled that sex and gender are the same. Justice Gorsuch followed their logic on the Bostock case.

How did the law arrive at this strange place? Who opened the floodgates? The brief answer is that Justice Neil Gorsuch did, in a decision called Bostock v. Clayton County in 2020 — the case that has warped a large sector of public law. This recognized sexual orientation and transgender identity as protected categories under the Civil Rights Act of 1964, which covers (among other things) discrimination based on an individual’s “sex.” The decision is replete with ironies — not least that Gorsuch, a self-described “originalist” judge who says that statutes should be read according to their original meaning when written, endorsed claims to rights that the enacting legislators in 1964 would have found bizarre and obviously invalid, if they could have imagined them at all.

As I said this has been established law for over four decades!

Gorsuch himself is unrepentant. In a recent separate opinion, he demanded to know whether his colleagues thought Bostock wrongly decided. Yet there is a lesson here for those colleagues, and for judges elsewhere: legal protections for transgenderism either have no beginning, or no end. Moderate and limited protection is an unstable middle-ground. It seems that the whole Court will soon have to face the question whether to confirm and indeed expand the transgender rights revolution, or to roll it back altogether.

The right-wingers are in a tizzy and worried that their pogrom is coming to an end as other trans cases come before the court. But we also have to be worried our margin is hanging by whim.