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Is the Equality Act necessary to codify Bostock v. Clayton County? How might the Equality Act affect religious liberty, if at all? How do we definitively differentiate between men and women? Today, our hosts chat about invidious sex discrimination as it relates to the Equality Act, and what this law means for the future of nondiscrimination law if it is passed by the Senate. Stay tuned to hear our hosts recap oral arguments for Brnovich v. Democratic National Committee, a Supreme Court case that deals with the Voting Rights Act.
Show Notes:
-“The Equality Act Has a Foundational Legal Problem” by David French in The Dispatch.
-Religious Freedom Restoration Act.
-Fulton v. City of Philadelphia.
-Brnovich v. Democratic National Committee and its Supreme Court oral arguments.
The chromosomal/gonad discussion seems like a distraction. The real question is this: can people born as men compete as women? Sure, you might find some weird corner cases, but there's no debate on whether the runners beating girls in high school races in the northeast were born male. No one wonders whether Rachel McKinnon was born male or female or some esoteric third option.
Sarah was doing a wonderful (like, seriously great; I was very annoyed at her for a moment) job playing Devil's Advocate, but the arguments she was advancing are the motte corresponding to the bailey of what's actually happening.
Sarah, you pondered, for the military, why the standard shouldn't just be everyone's standard for a particular military specialty. As a former Commanding Officer of the Marine Corps' Officer Candidates School (OCS) I can explain why standards / requirements may be different for males and females. At OCS the charter is to screen and evaluate officer candidates for character and leadership potential. The method to achieve the assessment is through an infantry platoon commander's duties and responsibilities. Using a Leadership Exercise as an evaluation event I would not want the candidate to be at 100% of his capability so we would use physical exercise prior to the Leadership Event to get the candidate down to 75% of his or her capability. We might go on 7-mile conditioning forced march at a 3-mile per 50 minute pace with 30lbs of gear. However, if you are a 6' 1", 190lb male or a 5' 4" 135lb female, no matter how great shape the female may be in, the male will be under less physical stress than the female and he may potentially score higher on the subsequent Leadership Exercise. So objective equality and fairness of the conditioning forced march actually puts the female at a disadvantage for the subsequent Leadership Exercise evaluation. That's why you may have different standards to ensure the evaluation, not the outcome, is conducted equally / fairly while on the surface it might appear that females are doing less than the males.