U.S. Supreme Court watchers were gobsmacked last week when Neil Gorsuch and John Roberts joined their liberal colleagues in ruling that a 1964 law barring discrimination “because of sex” protects employees from being fired because of their sexual orientation or gender identity.
Those who had been counting on the court’s conservative majority to make America straight again were aghast. What had possessed Roberts, who dissented from the court’s landmark 2015 ruling legalizing same-sex marriage, and Gorsuch, the first justice nominated by Donald Trump, to join the Rainbow Brigade?
It’s an important question, to which I’ll return by and by.
But after reading the dissenting opinions Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh filed in last week’s employment discrimination blockbuster, I have a different question:
Why do old men get so freaked out about public restrooms?
Trembling in the boy’s room
Whenever judges or legislators of a certain age weigh the consequences of extending legal rights to gay Americans, and especially to people who are transgender, the talk inevitably turns to toilets.
It is the same in Justice Samuel Alito’s dissent in Bostock v. Clayton County, Georgia, in which uncomfortable restroom scenarios rank foremost among the surprises awaiting straight people now that Alito’s Supreme Court colleagues have welcomed gay and transgender Americans under the umbrella of Civil Rights Act.
“The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex,” Alito wrote in his dissent, which was joined by fellow conservative Justice Clarence Thomas.
“For some, this may simply be a question of modesty, but for others there is more at stake,” he continued. “For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”
Robbed in a pay shower
Having an urgent need to pee is uncomfortable enough, and I wouldn’t wish additional distress on anyone in that circumstance. But it is striking how rarely survivors of sexual abuse mention their terror of encountering trans people in a public restroom, and how frequently men like Justice Alito conjure that anxiety. What’s with that?
I ask this in all earnestness, and as an old man with a memorably traumatic restroom experience in my own past. Some decades ago, during a stopover on a cross-country bus trip, I was lathering up in coin-operated shower stall outside Salt Lake City when a brazen burglar kicked in the stall’s steel door. Before I could wipe the shampoo from my eyes, he had made off with my clothes and wallet, leaving me naked and undocumented in a Greyhound terminal restroom thousands of miles from home.
I’ll bet you a signed first edition of “The Federalist Papers” this never happened to Sam Alito or Clarence Thomas. And if Brett Kavanaugh was ever accosted in a bus station restroom, he probably doesn’t remember it.
(Kavanaugh wrote a separate dissent in Bostock, and in fairness, he appears less concerned with keeping trans people out of restrooms than in preserving an employer’s right to discriminate against homosexuals, so long as the employer is equally intolerant of gay people of both genders.)
As frightening as my restroom experience was, it never occurred to me to wonder if the burglar responsible had been a woman in man’s clothes, or whether she had ogled me in my altogether before making off with my underwear. Nowadays, I use public restrooms several dozen times a week, at least in nonpandemic times, and I honestly can’t recall the last time I caught a glimpse of another patron’s genitalia, or exposed them to my own.
Lions and tigers and trans people
But scary restroom encounters are just one entry in the parade of horrors contemplated by Justice Alito. Female high school athletes are also in jeopardy, since a law banning discrimination against transgender people may “force young women to compete against students who have a very significant biological advantage” but identify as females.
Then there is the specter of colleges feeling obliged to assign students with different sexual orientations, or even different genitalia, to the same cramped dorm room. As if having to endure lectures in feminist literary criticism or the history of racial discrimination weren’t stressful enough.
As I read Alito’s catalog of post-Bostock hypotheticals, I was transported back to the day he and his colleagues heard arguments in Obergefell v. Hodges, the case that precipitated the court’s landmark ruling legalizing same-sex marriage.
It was only the second time I had witnessed a Supreme Court argument in person, and although almost everything that happened that day was memorable, what I recall most poignantly is a series of exchanges in which Alito and the late Justice Antonin Scalia shared their apocalyptic visions of a world made safe for Adam and Steve.
If the court struck down state laws barring the marriage of two men, Alito mused, on what grounds could it deny a marriage license to four men — or four women, or a mixed string quartet?
Scalia had a more frightening thought: What if siblings, of which Scalia had fathered nine, decided that they were entitled to marry one another, in any combination? Once the court’s liberal justices declared the marital prototype established in Genesis optional, where would the country’s zeal for customization end?
I remember wishing then that I could tell both men, who sensed the world in which they had achieved professional and personal satisfaction crumbling, that the ground beneath their feet was sturdier than they supposed. I wanted to reassure them that the landmark ruling the Obergefell majority was poised to issue over their objections would not imperil their own families, or blur the lines between polygamy and chamber music.
Anxiety’s retreating frontier
Scalia is gone now, but Gorsuch (who Trump nominated to replace Scalia) and Chief Justice Roberts (who once shared many of Scalia’s anxieties about the post-Obergefell world) seem less frightened of LGBTQ people, and of the future in general, than the court’s three other conservatives.
I do not know what ulterior motives, if any, compelled Roberts or Gorsuch to join forces with the majority in last week’s anti-discrimination ruling. Were they anxious to assert their independence from an unpopular president, whose Justice Department had insisted that gay and transgender people enjoyed no such federal protection? Are they hoping to forge a brand of jurisprudence distinct from Scalia’s sclerotic originalism, which insists that only thing that matters is what the “Mad Men”-era lawmakers who adopted the 1964 Civil Right Act thought they were doing when they banned employment discrimination because of sex?
But I doubt that either Gorsuch or Roberts believes they have fired “shotgun blasts to the face” of any right-thinking conservative, as Trump asserted, or dragged U.S. employers into some anarchic hellscape where no one has ever done business successfully.
To the contrary: The most profitable companies in America already prohibit the sort of discrimination the Bostock majority has now prohibited in every workplace. And opinion polls demonstrate that most voters have embraced equal treatment of gay and transgender employees for years, just as they had made peace with same-sex marriage long before the court struck down laws in the handful of states that continued to ban it.
The world may be spinning uncomfortably fast for Justice Alito, but it is not about to fling him off. The court’s decision to protect gay and transgender Americans from capricious bigotry will not make this a more dangerous society, and any awkwardness Alito and his contemporaries may experience in their rare forays into public restrooms is likely to be fleeting.
The workplace world is wide enough for all of us, and we are all going to be all right.
Brian Dickerson is the editorial page editor of the Detroit Free Press. Contact him at firstname.lastname@example.org.