In Bostock, the Supreme Court ruled that hiring discrimination against a gay person is discrimination on the basis of sex, and hence forbidden, because one wouldn’t refuse to, say, hire a woman who is attracted to men, and hence to refuse to hire a man who has the same “trait”, namely being attracted to men, is discrimination on the grounds of his sex.
Here is a clear counterexample to this line of reasoning. Consider an employer who refuses to hire a man who claims in a job application to be a woman on the grounds that this man is a liar. (Suppose this is a man in every socially accepted sense of the word: he is biologically male, he socially identifies as a man in every context other than this interview, etc.) Such an employer would not refuse to hire a woman with the same “trait”, namely claiming to be a woman. Hence by the Bostock reasoning, the employer discriminates on the basis of sex. But this is absurd: the basis for the discrimination is not the sex of the prospective employee, but lying about one’s sex. Similarly, discrimination against a white person who claims to be African American on the grounds of a mismatch between their claims and reality is not discrimination against white people.
In other words, the basis for the discrimination is not the sex of the candidate but the relationships between the candidate’s actual sex and the candidate’s claimed sex.
And logically speaking, this is all very much like the gay case, where the basis for the discrimination is not the sex of the candidate but the relationship between the candidate’s sex and the sex of the persons the candidate is attracted to.
I am not claiming that it is morally wrong to be attracted to persons of the same sex in the way in which it is wrong to lie (or in any any other way, for that matter). Nor am I claiming that it is reasonable or legal for an employer to discriminate on the basis of such attraction. All I am claiming is that such discrimination is not discrimination on the basis of the candidate’s sex.
Objection: There is an important difference between the trait of being attracted to men and the trait of claiming to be a man. Being attracted to men is essentially the same trait whether it is found in a man or a woman, while claiming to be a man is radically different when it is found in a man and in a woman, since it is truth-telling in the one case and lying in the other.
Response: This response would require the court to settle the question whether indeed the trait of being attracted to men is basically the same trait when found in men and when found in women, in a way in which the trait of claiming to be a man is not the same trait when found in men and when found in women. That is perhaps the real philosophical question here, and it is presumably precisely what the employer in question would dispute. The court cites the example of how discriminating on the grounds of interracial marriage is racial discrimination. Now, here I would say that the trait of marrying a person of race R is the same trait whether found in a person of race R or not. But clarifying exactly what it means to be basically the same trait is very difficult.
Disclaimer: I am no lawyer or legal scholar, just a philosopher with an eye for counterexamples.
If you're interested in a philosopher's take on the question of whether "Being attracted to men is essentially the same trait whether it is found in a man or a woman", check out Robin Dembroff's "What is Sexual Orientation?". The view defended there, IIRC, has it that a man attracted to men has the same sexual orientation as a woman attracted to men.
ReplyDeleteOn my view, there is a significant difference in the acts that one is attracted to: the person attracted to someone of the opposite sex is attracted to mating; the person attracted to someone of the same sex is attracted to a set of acts importantly different from mating (many of which I think are morally wrong, whether between persons of the same or the opposite sex).
ReplyDeleteAlex
ReplyDeleteLet's keep it simple.
Someone who wants to be hired by me you shouldn't...
Now fill in the blanks.
1 Someone who wants to be hired by me shouldn't lie.
2 Someone who wants to be hired by me shouldn't be attracted to women.
Neither of these involve someone's sex.
But the SC ruled against this:
3 A woman who wants to be hired by me you shouldn't be attracted to women and A man who wants to be hired by me you shouldn't be attracted to men.
So it's not the fact that someone is attracted to women but the sex of the person who is attracted to women that is problematic.
I think 3 is a clear case of sex-based discrimination because it allows women to do something that men aren't allowed to do and vice versa.
Or do you also think that
4 A woman who wants to be hired by me shouldn't eat peanut butter sandwiches and
5 A man who wants to be hired by me shouldn't be eat strawberry jam sandwiches is not discrimination of the basis of sex?
It doesn't matter that there is a significant difference between peanut butter and strawberry jam.
I think it's a logical mistake to break up the principle "Someone who wants to be hired by me shouldn't be attracted to persons of the same sex as themselves" into a conjunction of two statements, one for men and one for women, just as the principle "Someone who wants to be hired by shouldn't claim to be of a different sex than the one they are" shouldn't be broken up into the two principles: "A woman who wants to be hired by me shouldn't claim to be a man" and "A man who wants to be hired by me shouldn't claim to be a woman."
ReplyDeleteCompare this not unreasonable policy: "Someone hired by me shouldn't wear Halloween costumes stereotypical of an ethnicity other than their own." But when you break it up into separate policies for each ethnicity, it looks discriminatory:
Someone of ethnicity E2 shouldn't wear Halloween costumes stereotypical of E1 (but it's OK if someone of ethnicity E1 wears such costumes).
Someone of ethnicity E1 shouldn't wear Halloween costumes stereotypical of E2 (but it's OK if someone of ethnicity E2 wears such costumes).
Etc.
Alex
ReplyDeleteThere is no logical mistake in analysis what is really going on and it is clear that
"Someone hired by me shouldn't wear Halloween costumes stereotypical of an ethnicity other than their own" is discriminatory.
There may be very good reasons for this discrimination, but it is discrimination.
Likewise, "Someone who wants to be hired by me shouldn't be attracted to persons of the same sex as themselves" is discrimination.
Sometimes, discrimination may be justified, but in that case, the law should specify when and why it is justified. If such justification is not provided by the law, the SC is correct, and the practice of hiring discrimination against a gay person is discrimination on the basis of sex, and hence forbidden.
The practice of hiring discrimination based on Halloween costumes stereotypical of an ethnicity other than their own is also discrimination of the basis of ethnicity. And if it is not made clear why this discrimination would be justified, it should be forbidden.
One can multiply examples. It would be reasonable for an employer to fire a man who regularly uses women's restrooms or a woman who regularly uses men's restrooms, while having no problems with a woman who regularly uses women's restrooms or a man who regularly uses men's restrooms. (Assume that the man and woman are clearly a man and a woman by all relevant biological, social and personal-identification standards.) The general non-discriminatory policy here would be, of course, that employees are forbidden from regularly using bathrooms clearly not matching their sex or gender.
ReplyDeleteIf one bites the bullet on this, I don't see how one can distinguish the case from the federal government prohibiting a man from checking the "woman" box or a woman from checking the "man" box on a passport application.
Alex
ReplyDeleteYes, it would be "reasonable", but that's not the point. The point is whether it is, according to current law, discrimination on the basis of sex or not.
And if it is, then whether reasonable of not, the employer is not allowed to fire this man.
It does not become general non-discriminatory policy by using another way of describing it.
One can distinguish this case from the federal government prohibiting a man from checking the "woman" box or a woman from checking the "man" box on a passport application because lying about one's identity is forbidden, no matter who does it. Using a women's restroom is not forbidden, no matter who does this. It is forbidden for men, and that is discrimination on the basis of sex.
As I said above, there may be good reasons for this kind of discrimination, but then the lawmakers should specify those reasons, but if discrimination on the basis of sex is always forbidden, there can be no exceptions.