Supreme Court

Gorsuch May Be Swing Vote in Decision Whether Civil Rights Act Protects LGBT Workers From Discrimination

Justices weigh textual conflict over what counts as “sex discrimination” versus what Congress originally intended.

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Textual arguments about what "sex" means as a matter of statutory interpretation took center stage at the Supreme Court today, as the justices listened to attorneys argue whether the Civil Rights Act of 1964 protects LGBT people from workplace discrimination.

Based on today's questioning, it may well be Trump appointee Neil Gorsuch who serves as the swing vote, and he might even be leaning toward including sexual orientation and gender identity under the Civil Rights Act's workplace sex discrimination protections.

This morning, the Supreme Court took two hours to consider three cases of people being fired from their jobs, allegedly for being gay or transgender, to determine whether this was a violation of federal law. Two of the cases focused on men fired for being gay and were combined into one argument: Bostock v. Clayton County and Altitude Express v. Zarda. In these two cases, the employers denied that the employees' sexual orientation contributed to their firings, but even if it had, the employers argued, the firings still did not violate federal law. The third case, R.G. & J.R. Funeral Homes v. Equal Employment Opportunity Commission, which involves a transgender funeral home director, was heard separately, directly after the consolidated oral arguments in the first two cases. In the transgender case, the owners of the funeral home have made it clear they have religious objections to accommodating transgender employees and would not allow Aimee Stephens to switch to wearing women's clothing after her transition.

The overall conflict today pitted civil rights and gay rights advocates (David Cole of the American Civil Liberties Union represented the fired transgender funeral home director) against attorneys for the employers and against U.S. Solicitor General Noel Francisco. The Justice Department under President Trump has taken the position that neither sexual orientation nor gender identity are protected as the law is written and argue that Congress should add the categories through the legislative process.

While it's clear that Congress did not intend to cover sexual orientation or gender identity back when the law at issue was passed in 1964, there was little interest among the justices in discussing what Congress "intended." Much of the discussion and debate was completely "textual"—interpreting the common meaning of what the statute says and how it should be implemented.

Several of the justices made it abundantly clear that they were attempting to decide whether discrimination against LGBT folks could be classified as a type of "sex discrimination" and not what Congress was thinking when it passed the law. At one point, Justice Elena Kagan told Francisco directly, "[T]he lodestar of this Court's statutory interpretation has been the text of a statute, not the legislative history."

Thus, much of the entire debate revolved around the extent that discrimination against gay and transgender people is comparable to discrimination against men and women on the basis of whether they behave in an expected stereotypically masculine or feminine manner.

The distinction is relevant because of a previous Supreme Court precedent from, Price Waterhouse v. Hopkins (1989), in which the Court ruled that discrimination on the basis of whether or not a person behaves in the manner expected of her sex is forbidden under the Civil Rights Act. That case revolved around a woman who said she was discriminated against because she was too masculine and aggressive. The case was invoked repeatedly by all sides as they compared what happened back then to the three LGBT workers in these new cases.

That's where Gorsuch expressed interest in considering that there is, in fact, a textualist argument that sexual orientation and gender identity might be protected under the Civil Rights Act. Solicitor General Francisco argued that sexual orientation and gender identity were different traits than simply sex, but Gorsuch pressed, "at least one contributing cause here appears to be sex," and that in particular, the two gay men seemed to be discriminated against because of the sex of their partners. The same thing would not happen to heterosexual workers, so how could sex not be playing a role here?

But while Gorsuch seemed open to the argument that LGBT discrimination is based on sexual stereotypes, he also seemed to express a bit of hesitation during the second hour when the Court discussed the case of the transgender funeral home employee. Gorsuch asked Cole:

[A]ssume for the moment I'm with you on the textual evidence. It's close, okay? We're not talking about extra-textual stuff. We're talking about the text. It's close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that—that Congress didn't think about it and that—that is more effective—more appropriate a legislative rather than a judicial function? That's it. It's a question of judicial modesty.

Cole responded that he didn't think a ruling would result in an upheaval because transgender people already exist in America and have for a while. Employers would still be able to apply sex-based dress codes as long as transgender workers were able to dress as the gender they've chosen and not be forced to dress on the basis of their birth sex. Cole argued:

[A]t the end of the day, the objection to someone for being transgender is the ultimate sex stereotype. It is saying, I object to you because you fail to conform to this stereotype: The stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man. That is a true generalization for most of us, but it is not true for 1.5 million transgender Americans.

Chief Justice John Roberts and Justice Samuel Alito seemed to prefer to leave it up to Congress and state lawmakers to hammer out solutions, but their questioning was not overly hostile. There was also a lot of questioning about the high likelihood that the Supreme Court will have to weigh in on issues relating to which bathrooms and facilities transgender people should use and which team transgender athletes would play for. Justice Brett Kavanaugh asked just one question about how to draw a distinction between the literal and ordinary meanings of the words "because of sex" and the question did not hint at which way he might rule.

Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg, meanwhile, all seemed to support the LGBT side, though Ginsburg asked many questions trying to determine how far a ruling in favor of the three employees might expand beyond just the workplace.

The decisions are expected in June, right in the middle of election season. You can read the transcripts of today's arguments here and here.

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  1. I wasn’t assigned anything at birth other than being alive. People just drew conclusions because of the dick and the balls. Can we quit using this “assigned” thing? Or how about we just discard male and female and I’ll make sure to piss on every toilet seat I come across?

    1. And your sex wasn’t determined at birth, but at conception.

      1. You tell ’em. Stand up for small-mindedness. We definitely don’t have enough of that in the world.

        1. Stand up for small-mindedness. We definitely don’t have enough of that in the world.

          Since you’re here the quota has been met.

  2. I’d like to complain…

  3. “At one point, Justice Elena Kagan told Francisco directly, “[T]he lodestar of this Court’s statutory interpretation has been the text of a statute, not the legislative history.””

    Wasnt there an anonymous writer of a NYT article that used lodestar….

    1. Are you suggesting Kagan is Mike Pence’s transgendered alter-ego? Is this why he doesn’t want to be alone with other women, he knows they can pick up on subtle cues men can’t and might easily guess his secret?

    2. More pertinently Kagan needs to be held to this standard she has articulated. But she will abandon this in a New York minute in a 2A case. F*ing hypocrite. Impeach this worthless baitch.

  4. “In these two cases, the employers denied that the employees’ sexual orientation contributed to their firings”
    My friend’s a Dealer Principal and his GM hired a gay lot guy at his dealership who turned out to be useless. On the days he actually shows up he sits around and watches TV in the customer area, and claims that the other staff are prejudiced because he’s gay.
    His GM is too frightened to fire him, and when he talked to his lawyer, he advised him to just keep paying his hours and treat it like a loss. He can’t risk having a media blitz calling him a bigot.

    1. Looks pretty sketchy for the Altitude Express v. Zarda case.
      “On one occasion after Zarda informed a female client about his sexual orientation and performed the tandem jump with her, the client alleged that Zarda had inappropriately touched her and disclosed his sexual orientation to excuse his behavior. In response to this complaint, Zarda’s boss fired him. Zarda denied touching the client inappropriately and claimed that he was fired solely because of his reference to his sexual orientation.”

      1. And Clayton v. Barstock looks pretty illegitimate too:
        “Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.”

      2. I’d have to know more details to really judge, but given the uncertainty their about the real motivations behind the firings, this case could well avoid the whole question of whether the act applies or not. Or do they figure that out first and then decide the merits of the case?

        1. Those will be decided during the trial by jury if the claims are cleared to move forward. The current court cases are about whether such claims under the Title VII can be brought upon in the first place.

    2. Yeah, that’s a problem (among many) with anti-discrimination laws. They are just waiting to be abused like that.

    3. Just like Democrats arent allowed to be investigated over shady deals making family members rich… gays cant be investigated for shit work ethics.

      1. Putting LGBT under the CRA would be a disaster for this country.

        1. In what way, specifically?

          1. The same way as its been for the last 50-years since the 1964 CRA… One entitled group after another running around thinking EVERYONE should bend over to their desires.

            1. If you’re constantly getting fucked up the ass by minorities, I think you have a totally separate problem from the CRA.

              1. The. RA has destroyed the right to free association.

          2. It would lead to endless chain of bully victims.

    4. This is a problem and just like the disabled discovered, the ADA just made them a liability. If you can tell that someone is gay, you hire them, and then may have to fire them you open yourself up to costly lawsuits. Corporate may just settle and then you get fired. It’s just easier to not hire those that you think or know are gay. It’s not illegal to find a better candidate for the job.
      Why does everyone want to be a liability?

      1. Same argument, different decade.

        Even with these rights, it’s not difficult to hide your true motive if those motives are to be a asshole to minorities.

        The people who really get their panties in a wad over this want to be monumental cunts to minorities by putting them in their place (“I want to pretend they don’t exist because I’m a whiny little baby girl.”)

        There is a burden of proof requirement on discrimination complaints.

        1. The problem is the law is often written with both parties in mind. In the case of the ADA it gave legal protections not to hire those with disabilities. A counter being too high for the person is reason enough. Previously, the employer would work with the employee. Now the law states that all counters must be higher than a standard wheelchair. Cool! Notice how many jobs now have their employees do all kinds of different tasks? Why do you think that is? You are legally protected from not hiring cripples since they can’t do the job.
          Even if you say that you’re gay it doesn’t mean the person that fired you heard it, remembered it, etc. “You’re being fired because you are gay” is an extremely easy thing to not say.
          While there is a burden of proof, a lawsuit is a burden. Companies will just avoid it by not hiring men that appear effeminate or women that look like they’re awesome at drinking beer and arm wrestling. This isn’t going to help gays. Well, maybe those that shut their mouths. Employers already have enough liability waiting just around the corner. If you can spot it then you can avoid it. It’s not like race or sex where it can be obvious if you don’t have any employed.

  5. This morning, the Supreme Court took two hours to consider three cases of people being fired from their jobs, allegedly for being gay or transgender, to determine whether this was a violation of federal law.

    Wait, I don’t want to be the buzzkill here, but “allegedly fired for being gay or trans”. Wouldn’t you have to first: Prove you were fired for being gay, then second: Petition the courts to demand said firing was a violation of federal law?

    Are we saying that it’s possible no one was fired for being gay but we need to have a landmark case about ‘allegedly’?

    I identify as St. Jerome. I got fired from my job. The Supreme Court should now rule on whether identifying as St. Jerome should be protected under federal law?

    1. It’s possible that the trial court dismissed the case because, even assuming the plaintiff’s allegations of discrimination were true, the plaintiff didn’t have a claim because the the CRA doesn’t prohibit the kind of discrimination he’s alleged. So the issue of what the CRA does and doesn’t cover could be before the SCOTUS now even though the trial court never determined whether the plaintiff’s factual allegations were true.

    2. +1 exactly.

      The two employers *deny* they fired the employees over issues of which outfits they wear/lisping/mincing/makeup/whatever.

      so, first they need to prove that was actually the reason and THEN they can have a case about whether or not that violates federal discrimination laws*

      *which are unconstitutional and should be abolished anyway…

    3. In the transgender case, the owners of the funeral home have made it clear they have religious objections to accommodating transgender employees and would not allow Aimee Stephens to switch to wearing women’s clothing after her transition.

      So I guess in the trans case, it’s not allegedly? In my opinion, the trans case is the most interesting one because it’s a fantastic constellation of confusing principles.

      1. Some people have to wear uniforms at work. And presenting a consistent facade to the customers may be desirable as well. The employer should be calling the shots, as long as it’s done uniformly.

        1. as long as it’s done uniformly.

          No, there’s no reason it should have to be done uniformly. It the employer wants to make exceptions to the rules the employers created then the employer should be free to do so.

          Employees are, as always, free to accept the terms or seek employment elsewhere. No one should be forced to associate with anyone they do not wish to.

          1. Because, as we all know, might makes right. Libertarianism in one lesson, amirite?

            1. “might makes right”

              Ahahahah what DOL? Wtf? You aren’t forced to go to work you God damned idiot ahahahahahah

              What the fuck is wrong with you lololollll

              “I TOOK THIS JOB AND THE MEAN SLAVER TOLD ME I COULD GO HOME IF I WASN’T I UNIFORM” LOLOLOL IT’S LITERALLY THE OPPOSITE OF WHAT YOU SAID AHAHAHAHAHAHA

              1. I’m in favor of free association. Swing and a miss again, dumb fuck.

                1. Ahahahah it’s so obvious that this you fucking stop lying whore

                  1. Ahahahha he thinks after lying about it for weeks anyone csrs about his denials ahahahahahahahahahahahh

                    1. It’s totally you Esmeralda save the sad fucking denials ahahahahaahahaj

                    2. Ahahaahahahhaha

                      HE

                      THINKS

                      PEOPLE

                      WILL

                      BELIEVE

                      HIM

                      AHAHAHAHAHAHAHAHAHAHAHAHAHAH

                2. “I’m in favor of free association”

                  That’s bold. Not many people are willing to say shopkeepers should be able to refuse to serve blacks gays and the like, and women can be excluded from any club men want to exclude them from.

                  1. Yeah, I know. I don’t think those things should happen, but I do not support racial quotas and all the other nonsense that comes about once the government gets to decide what groups to put people in and how they should interact with each other. It’s a slippery slope argument, I know. But we have witnessed this one go down in real time. See the other article about race quotas, Harvard, and Asian students for an example.

                    1. Fuck off jeff no one cares what you think. You can’t even tell when you’re being mocked you sad aspie fuck.

                    2. Havent you even proven wrong enough times today?

                    3. To prove anything you’d have to actually make a cited argument, which seems beyond your ability.

                    4. So not for freedom of association. Got it. Little Jeffy will always expose himself as collectivist Jeffy.

                    5. Jeff. You’re assertions today have been thoroughly smacked down with supporting references all day yesterday. You were even caught using the incorrect whistleblower statute dumbfuck.

                3. Free association like you wanting to force bakers to make cakes for religious events they dont support. Right jeff. You’re for free association.

                  1. ? I’m not Jeff you fucking lunatic, and no, I wouldn’t force anyone to bake a cake.

                    1. You’ve already admitted it dumbass.

              2. AHAHAHAHAH WHAT KIND OF RETARD IS HE IT’S A JOB YOU JUST LEAVE IF YOU DON’T LIKE IT AHAHAHAHAHAHAHAH THIS ISN’T PHAROANIC EGYPT AHAHAHHAHAHAHAJ

            2. Tony, the only might here is the government forcing bakers and photog to participate in religious events they dont agree with.

        2. At my Father’s Funeral all of the undertaker’s employees wore black suits, white button collar shirts and black neck ties. No gender difference.

          It wasn’t that long ago that women fought to wear slacks.

          1. At a funeral home, the people who are dealing with a DEAD RELATIVE should be of the paramount concern…not some employee who decides he “feels” like a woman, whatever the fuck that even means.

    4. Is there anything that says these cases have to be decided in any way collectively?

      Can’t we get between 0-3 decisions saying it’s always OK to fire trannies from funeral homes (or not) *or* narrowly OK to fire homosexuals as long as you find out through complaining customers (or not) *or* narrowly OK to fire homosexuals as long as you warn them of an audit and find that their portfolios are shitty (…)?

      The ‘allegedly’ specter is reprehensible. You wouldn’t even have to identify as St. Jerome any more than a woman would have to (have) refuse(d) consent in a Title IX hearing. Simply allege that you were St. Jerome at the time.

      1. That was my thinking, I fully expect that gender identity will be found to be a protected class, and sexual orientation not

    5. “Prove you were fired for being gay”

      This is a problem I noticed too. Many psychologists believe that sexual orientation can be fluid to a degree. Then there are those that fuck everything. They can claim to be straight or gay.
      I’m not sure what test could be given in court for this. Maybe “blow the baliff” and then test to see if the person is aroused. Could that work? I’m not a lawmaker. That’s probably good considering I just suggested that.

      1. How about what types of people fuck in their private life simply not be permitted to be a factor in hiring and firing? Same as what skin color you have? What’s the big deal? Slippery slope to you enjoying butt play?

        1. How about what types of people fuck in their private life simply not be permitted to be a factor in hiring and firing?

          None of the cases before the court involve employers peeping in to employees private lives and the heart of the issue is quite to the contrary.

          Even if you think employers shouldn’t be able to reach into employees’ private lives you should certainly have a heaping dose of reservation about an employee being able to shout “I’m gay.” as an unassailable defense to their employer about customer allegations of groping.

          1. Straight guys have been able to grope for centuries, and now all of a sudden it’s a problem.

            1. If he were straight, we would have never heard about his being fired because he would have just moved on to another job.

        2. How about what types of people fuck in their private life simply not be permitted to be a factor in hiring and firing? Same as what skin color you have?

          Skin color is a factor in hiring and firing and becoming more so every year at the left’s instigation.

          1. “You made me a racist!”

            1. Nah, you’ve always been a racist.

              But it’s sad the left is now reduced to claiming treating everyone fairly is racist. Apparently you can’t even think of good polices anymore much less enact them.

              1. Oh my god the early 1990s called and want their political bullshit back.

                1. Oh my god the early 1990s called and want their political bullshit back.

                  Next time go with something that wasn’t cliched when Obama proved himself a fool using it. Maybe you’ll have better luck avoiding proving yourself the same yet again.

        3. Tony, how would ANYBODY know whom you fuck unless YOU bring it up?

          How about you not do that?

          1. As soon as straight people stop talking about their husbands and wives.

            I’m all for it.

    6. You seem to have a real grasp on these issues.

      Yes, you have to prove discrimination. If that burden is met, the employer has to prove they didn’t discriminate. Seems fair.

      As for the category of being a schizophrenic that you seek protection for, that goes to disability but also to work ability. Knock yourself out in court.

      1. How does one prove they did NOT do something?

        Try and use logic and explain how you prove a negative.

  6. “[T]he lodestar of this Court’s statutory interpretation has been the text of a statute, not the legislative history.”

    Well, yes – except that where the text is ambiguous, you go to legislative intent as determined by the record of the debate. Is the text ambiguous? Well – there’s a Supreme Court case revolving around the issue, I would say that’s pretty good evidence the text is ambiguous. Is the legislative intent clear? Given the fact that Congress could have at any time cleared this up by passing an amendment to the CRA, I’d say yes, the legislative intent is very clear. They’re going to hide under their fucking desks and stay very, very quiet so that regardless of what happens they can’t be blamed. Remind me again why we even have a legislature when they’ve pawned off most of their responsibilities to the Executive Branch agencies and allow both the President and the Supreme Court to interpret and re-write the laws and the Constitution as they see fit?

    1. Exactly. The Court shouldn’t create a law that Congress couldn’t decide to pass.

    2. That’s why presidential elections are so important. When you’ve got an imperial presidency…

  7. At one point, Justice Elena Kagan told Francisco directly, “[T]he lodestar of this Court’s statutory interpretation has been the text of a statute, not the legislative history.”

    Well, except for the penaltax.

  8. Swing vote? Shouldn’t it be 9-0? This isn’t ancient history, we know what the law was intended to cover when it was passed.

  9. Congress obviously meant male/female sex discrimination. If you want gays covered, make a new law. Or, preferably, don’t. Society is progressing quite nicely on its own when it comes to not being shitty to gay people.

    1. And since this is coming from someone who believes that gays are part of a communist conspiracy (along with vaccines, muslims, water fluoridation, unsegregated schools, interracial dating, women gamers, soccer, dubstep, evolution, Mayochup and whatever else you’ve added this week) I’m sure your impression counts for a lot.

      1. What? I got no problem with gays. I very much would like everyone to stop being shitty about anyone’s sexual proclivities (as long as it’s all among consenting adults). But you have a right to be a wrong-headed asshole.
        And, while it’s not my preferred policy, congress can extend the law to cover sexual orientation if that’s what they want. The court shouldn’t be doing that.

        1. There is not constitutional authority to take away hiring and firing power from employers.

          The Commerce Clause is not a ticket for anything goes regulation of business.

        2. Bullshit. Your unwavering support for pundits and politicians who advocate re-criminalization of gay people gives a big fat thumping lie to that.

          Oh you want sources? I’m not bothering. Maybe if you can do the legwork yourself if you’re not an entitled millennial but I’m long done with dealing with the gamut of weak excuses to conspiracy theories you use to cope with information that challenges conservative ideology..

          1. So it is now a crime not to hire someone with some trait. Wow your arguments get worse and worse tony.

  10. I wish I could bet $$$ against Gorsuch finding in favor for special rights for deviants.

    1. Scott shackford is delirious if he thinks Gorsuch will side with anything that expands the Civil Rights Act to cover transtesticals.

      I would also suspect that Gorsuch would strike down the entire workplace discrimination part, if he had the chance.

    2. Gorsuch…..is a swinger!

  11. It really is the same as Price Waterhouse; you’re discriminating because someone is doing something that would be ok if only their genitals were different. The clothes they wear, the people they fuck… Only problem is doing it while being the “wrong” sex. Glad to see Gorsuch skeptical, his nomination is one of the few bright spots of this administration.

    1. “you’re discriminating because someone is doing something that would be ok if only their genitals were different”

      Well that’s certainly the disingenuous argument, which of course overlooks that employees have to wear work appropriate attire regardless of their genitals. That you (and thd employee) have decided it was work appropriate is irrelevant.

      1. It’s not disingenuous at all… Nobody was asking to wear attire that wouldn’t be inappropriate for anyone, the problem was the employer would be perfectly fine with the attire if they presumed the person had a vagina rather than a penis. That’s discriminating on sex– doing something only because of someone’s genitals.

        1. …and that IS the precedent, that you can’t be required to follow sex stereotypes. That a man can’t wear a certain article of clothing because it’s for women is a sex stereotype.

          1. You must be unemployed

    2. Price Waterhouse clearly prohibits discrimination based on sex “stereotypes.” An employer cannot discriminate against a female employee for not being “feminine” enough, and vice-versa. It would appear, at first glance, that the funeral home engaged in precisely this type of discrimination by terminating Stephens, a biological male, for subsequently presenting as a woman.

      The funeral home, in my view, raises an interesting counter argument by attempting to differentiate between a prohibition against stereotypes about sex, and sex itself as a stereotype.

      “According to Harris Homes, the Sixth Circuit classified sex itself as a stereotype, and warns that such a broad interpretation of sex stereotyping would defeat every sex-specific company policy in existence, and also be inconsistent with the Court’s precedent that differences in reproductive organs between men and women are not “gender-based stereotypes.”

      Source: https://www.law.cornell.edu/supct/cert/18-107

      I think the funeral home’s argument boils down to: “Don’t pretend to be a woman when you’re clearly not,” which is different than “as a woman, you have to be more feminine” or “as a man, you have to be more masculine.” If Stephens is a woman, then, arguably, there is no stereotyping. The funeral home did not say something along the lines of “Well, Aimee, now that you are a woman, you have to dress more provocatively, otherwise we’re terminating you.” That, I think, would constitute unlawful enforcement of a sex stereotype.

      At the end of the day, the funeral home isn’t demanding that Stephens display more of the characteristics associated with being a woman, at the risk of termination, but to stop *pretending* to be a woman. I think that is a material difference.

      The reason it is confusing is because, in order to state a claim, a plaintiff under Title VII must establish, as a preliminary matter, that they are in a protected category. And, under the settled understanding of Title VII, there are only two categories with respect to sex discrimination claims: male and female.

      I think SCOTUS would be hard pressed to avoid the inherent unreality of the transgender argument. Under Title VII, in order to state a claim, you have to pick a gender first. A transgender plaintiff cannot claim, simultaneously, that they are a woman, but then insist on the legal analysis to proceed as though they were a man being discriminated against for not being masculine enough.

      Now, if Stephens wants to argue “Well, fine, I’m a man who prefers to dress as a woman,” then I suppose many precedents affirming the use of employer dress codes must be confronted as well.

  12. Discussing your sexual fantasies at work is harassment and your coworkers are not obligated to participate.

  13. “While it’s clear that Congress did not intend to cover sexual orientation or gender identity back when the law at issue was passed in 1964, there was little interest among the justices in discussing what Congress “intended.”

    Assessing congressional intent under a textualist approach to statutory interpretation – that is, what congress may have intended to achieve with the legislation – is improper. Kagan is correct on that point.

    However, the meaning of the word “sex,” if textualism is truly the analytical framework being employed, must be derived from the commonly understood definition of the word *at the time* the statute was enacted. That the meaning or definition of the word “sex” may have changed in the intervening years since enactment should not be a consideration.

    Thus, while congressional *intent* is irrelevant in assessing the true meaning of the word “sex,” congressional *understanding* of the meaning of the words employed in a statute at the time of enactment is *very* relevant. As it happens, the fact that congress did not intend to include sexual orientation or gender identity as falling within the ambit of the statute provides the textualist with compelling evidence that the word “sex” was not understood to include sexual orientation or gender identity.

    On the other hand, if the justices conclude that the meaning of the word “sex” has changed and, therefore, must today be interpreted as encompassing evolving definitions which may have developed since the time of original enactment, that is not a textualist approach. That is judicial revision; the “living Consitution” approach masquerading as textualism.

    In my view, Gorsuch should come to the same conclusion. The meaning of the word “sex” may indeed have changed, but it clearly did not mean then, what it means today.

  14. So if this decision ends up as the left hopes we’ll have discovered in the last two weeks that civil rights laws permit racial discrimination even though the law specifically prohibits this while the law prohibits discrimination against gays and trannies even though nothing in the law does this.

    I wonder why people conclude judges decide cases based on their personal political preferences.

    1. And if those issues are resolved as the right wishes it will be tough luck for blacks and gays, precisely in line with the reason our vestigial clingers continue to be routed in the culture war as they await replacement — stale bigotry.

      1. Or, you know, if your imagined culture war is so one-sided, it should not be a problem for the enlightened class of replacements to pass a law and finally send the stubborn clingers to their doom.

        I find it bizarre that the fanatics claiming to have a popular mandate to enact their preferred policies seem to have little interest, if any, in passing any actual legislation.

        Perhaps the detested clingers are not as powerless as you insist.

      2. And if those issues are resolved as the right wishes it will be tough luck for blacks and gays,

        It will certainly be tough luck for those whose vision is discriminating against others in retribution for what still others endured in the past. But polls show an overwhelming percentage of Americans reject this framework which is why those like you who pursue it must misrepresent both reality and yourselves.

  15. As always…you will be MADE to care.

    And when this transgender nonsense is proven to be the bullshit it is, the idiotic “elite” will then move on to something else after having fucked up society beyond recognition.

    1. Massive wealth transfers upward, crumbling roads and bridges, healthcare costs skyrocketing, tens of thousands of gun deaths per year.

      But what really fucks up society are people you will never meat taking a shit in a place you will never be.

      1. “people you will never meat”

        Do you have to insert your dick into every discussion?

        1. It just sort of shows up.

  16. “The stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man.”

    The Court better reject this bullshit for what it is. You aren’t “assigned” a sex. Humans, like many animals, are sexually dimorphic. You don’t get to choose your sex. I can wear dresses and mutilate my body and take estrogen and I’ll still be a man.

    The danger in adding these mental patients as a protected class is the ever-expanding definition of discrimination against them. A simple, objective statement like mine is considered transphobic and hate speech in most countries today.

    1. What an original and insightful opinion, and I’m sure you have a medical degree to back up your bald rejection of current mental health categorizations.

      1. Are you saying that people receiving medical treatment for their mental health categorizations aren’t mental patients?

        Even if you’ve got an English degree, it doesn’t cover your stupidity.

        1. Being trans isn’t a psychological disorder.

          1. To be fair, the distinction between simply being “transgender” and experiencing clinical “gender dysphoria,” along with the attendant depression, among other conditions, is difficult to draw, even for mental health professionals. There is obviously a psychological component involved. If you are interested, the case of Jamie Shupe should be illustrative.

            1. I’m interested in maximizing liberty and happiness for human beings.

              1. That is an admirable goal, though not necessarily one achievable through legislation. However, if there is a broad enough consensus on the matter, that consensus should be expressed through the adoption of appropriate legislation. Ultimately, it is not the role of the judiciary to balance, dispute, endorse, or reject competing societal considerations while slyly rewriting laws duly enacted by the legislature.

                1. Now who’s the utopian.

                  Interpreting law is pretty much the same as writing law. Don’t you think?

                  I merely object to jurists who insist only *they* are rewriting law in the correct way, because they say so.

                  1. Interpreting a law is not the same as rewriting it. Words have meanings.

                    1. They have meanings… to a point.

          2. It always will be, regardless of how medical professionals tiptoe around the issue.

            Imagine if we accepted body integrity dysphoria as a legitimate way of being and not a mental illness. We would literally be endorsing self-mutilation because that’s just who they are and isn’t disorderly to harm yourself or believe something that is objectively false. Of course you’ll say this comparison is absurd and is a slippery slope argument, but that’s what they said about trannies 50 years ago when social justice started infecting the DSM.

    2. Discrimination was considered invidious precisely because it was understood to be a vehicle for the oppression of individuals based upon their *immutable* characteristics (religion being a notable exception due to the constitutional considerations). Expanding that understanding to include a prohibition against discrimination on the basis of *mutable* characteristics, such as “gender identity,” where one day a man can wake up as a woman, or a woman as a man, or as neither, does not quite seem to be the same.

      If, as the progressives posit, sexual preferences and gender identity are fluid, and on a spectrum, and not subject to any binary classifications, or any classifications, then it is very difficult to argue that we are dealing with “immutable” characteristics, which in turn makes it very difficult to argue that the alleged discrimination is all that invidious.

      If one can change their sexual preferences and identity as easily as one can change their clothes, then even deliberate discrimination can plausibly be argued to be targeted toward particular behaviors, not people. And, it is well-settled that it is absolutely legal for an employer to terminate an individual’s employment, or refuse to hire in the first place, based on certain behavioral tendencies or perceived irregularities.

      However, if the societal understanding of what constitutes invidious discrimination has changed, then the solution is to enact new legislation. Judicial revisionism should be strenuously avoided.

      1. “If one can change their sexual preferences and identity as easily as one can change their clothes”

        One can’t.

        Unlike religion.

  17. Anyone ranting like a sweaty, buck-toothed moron about “mental illness” has ejected himself from the sane part of this debate. So congratulations on making yourselves irrelevant. Society has moved on from you. I’m glad to clear you away so we can talk about the actual issue at hand.

    Gorsuch clearly sees the textual logic in extending rights to gay and trans people but worries about “social upheaval.” His lingering itch of conservative horseshit is getting in the way. This is why it’s important to have diversity on the bench. Straight white men whose biggest experience with diversity was when they had a midget at their frat party once have an inherent bias against the realities of human life. One wonders why they’re useful at all.

    1. “Society has moved on from you.”

      If that is the case, and it may well be the case, pass a law. If society has moved on, the evolution of society’s understanding should be reflected through duly enacted legislation, not judicial revisionism.

      1. So mark you down for being a legislative history person and not a textualist. Is that for all cases, or is it a case-by-case thing? The question at hand is over the meaning of the text as applied in novel scenarios, the same thing that happens with all laws and arguably all controversies before the supreme court.

        1. I made a previous comment on this article about textualism (above). I think textualism is the correct approach. However, textualism does not include the process of expanding the definition of statutory terms just because the meaning of those terms has evolved over time and then retroactively applying the newer definitions. The process of enacting new legislation easily accommodates evolving definitions and novel understandings. If people want greater and broader protections, then passing a new law is the solution.

          1. The ERA, just like every other law, does not anticipate all possible cases that fall under it. If a woman is fired for grilling burgers at the company picnic because that’s a man’s job, we both agree that’s sex-based discrimination, but the ERA doesn’t mention grilling hamburgers at all. It’s no huge stretch to see sex discrimination in anti-LGBT discrimination, and would be a succinct way of updating law to expand liberty without even requiring any judicial activism. Just a plausible reading of the text given a social framework in which we acknowledge that gay and trans people actually exist. Not that I’d object to Congress writing new law to the same effect. But that would require Democrats being in charge of Congress and the presidency, probably, so is that really what you prefer?

            1. The legal disputes at issue arise under Title VII of the Civil Rights Act of 1964, and should be resolved by reference its specific statutory provisions, along with relevant precedent.

              I am not sure what the “ERA” is but it seems, based on a quick search, to be a proposed amendment to the United States Constitution. If that is what you are referring to, and you may not be, it has no legal force and, further, I do not see how it applies to the specific legal disputes at hand.

    2. Do you even know what the role of a judge is?

      Hint: It is not to give you what you want, according to whatever you think is right of even “just.”

      See a definition of legislator or Congress for that. You know, the folks elected by popular vote to represent their constituents and propose legislation on their behalf.

      1. It’s so cute that you think that.

        Justices interpret law. That means, necessarily, making new law. Even the ones who claim they are simply reading the entrails of dead founders. That’s PR, nothing more.

        1. “That means, necessarily, making new law.”

          No, it doesn’t. No matter how much you want it to. Judges do not not get to play un-elected legislators for life.

          Consider, if you can, the contrary. You want a majority of persons on the US Supreme Court to make a decision that you think is right and fair. So does everyone else. Imagine a plurality of them deciding that gay people do not have equal rights, and are not entitled to coverage under the Civil Rights Act. Federal judges are appointed to life to empower their independence from political influence. And you can never vote against them or choose a replacement [as you can with a member of Congress]. How does that judge made law look to you then?

        2. And if that isn’t enough to convince you…

          Trump [or rather Mitch Mcconnell and the FEDSOC] have filled 150 judicial vacancies to date; there are another 70 in the judicial pipeline; even if Trump is forced from office, that will mean they will have filled about 30% of the entire federal judiciary. And you believe they all have the right to “make law?”

          1. They do, and we’ll all be worse off for McConnell’s shenanigans. It’s not like we’ve been saying something different this whole time.

            Have fun defending the new right-wing regime that emerges from nowhere as somehow legislatively intended. You could just say Jesus wanted it that way.

            1. Tony,

              You are confusing the issues. If you are endorsing legislative *intent* as the governing principle, then sexual orientation and gender identity discrimination are assuredly not within the ambit of Title VII’s prohibitions.

              Textualism, on the other hand, means ascertaining the meaning of a word or term as it was understood at the time of the statutory enactment in question. If you are against a “right-wing regime,” then legislative intent is the last thing you should be endorsing.

        3. “Justices interpret law. That means, necessarily, making new law.”

          Interpretation is not synonymous with interpolation. At any given point in time, words have objective meanings even if that meaning may, at a later point, change or evolve. Judges should strive to ascertain the meanings of words employed in a statutory enactment at the time of the enactment and not, as you appear to suggest, to create entirely new definitions to suit their policy preferences. That there are judges that deliberately engage in interpolation, as opposed to interpretation, simply means that there are judges that are drastically departing from the permissible scope their judicial duties, if not abusing those duties outright.

          1. You said it much better than I did; thank you. Thankfully we now have justices like Gorsuch who seem to understand this.

          2. You just mean judges who don’t rule the way you want them to. And the way you want them to rule is a cunty way. It’s so unnecessary.

            Interpreting “on the basis of sex” to include gay people in no way perverts any of the language of the statute. That’s the whole fucking point here.

            1. Tony,

              Keep it civil, please. I’ve been respectful throughout the discussion, and you should do the same.

              Textualism is an analytic approach to constitutional and statutory interpretation. A valid argument can be made that the contemporary meaning of “sex” is drastically different than when Title VII was first enacted. However, under a textualist approach, evolving definitions do not govern the interpretive analysis. Laws are not passed with the expectation that material terms referenced therein are subject to an indefinite, undisclosed series of semantic mutations over time. That doesn’t just apply to laws; it applies to all writings. If a hundred years from now the word “sex” comes to be understood to include, for example, engaging in sexual relations with robots, that would not mean that discriminating against people who have sex with robots automatically falls within the ambit of Title VII.

              Words change. Definitions change. Public understandings of the meaning of words change as well. Laws are capable of changing as well, but in our system of governance, it is the role of the legislature to account for those changes by passing new laws or amending old ones. It is not a judge’s role to revise the meaning of words as they were understood at the time a law was enacted, but to determine what that meaning was.

              I have no dog in the fight and never expressed a preference one way or the other. I am simply pointing out to you how textualism works because you seem to be harboring some very deep misconceptions about the nature of the approach and its application in practice.

              1. The argument, though, isn’t that there has been a redefinition of the word “sex.” It’s that discriminating against gay and trans people is, by definition, sex discrimination. This is a novel scenario in which an old law applies in a way not foreseen, which happens often and is often derided as judicial legislation.

                I’m not particularly hung up on this either, as I’m pretty much a judicial consequentialist. Not simply because I think courts should rule in a way that I believe benefits society, leaving strict textualist or originalist fixations as secondary concerns, but because I also believe that people who claim to be operating under textualist or originalist frameworks are being disingenuous. Do a tally of rulings and their effect on existing law, and I wouldn’t doubt that the conservative approaches have changed law, or our understanding of law, at least as often as progressive ones.

                1. //The argument, though, isn’t that there has been a redefinition of the word “sex.”//

                  That *is* the debate. The argument is entirely centered upon the meaning of the word “sex” as it is used in the phrase “on the basis of sex” in the context of a Title VII litigation.

                  //It’s that discriminating against gay and trans people is, by definition, sex discrimination.//

                  All you have done with this statement is unilaterally redefine the legal definition of a statutory term to mean what you think it *should* mean, rather than what it actually meant when the law was written. I do not see how that is defensible, regardless of what you label this approach to statutory interpretation. If a law should be changed, then change it – but, do it legislatively.

                  The problem with the brand of “consequential” revisionism you appear to be endorsing is that it is shortsighted. While it may be heartening to believe that one particularly preferred statutory interpretation will acquire universal acceptance and remain unchallenged, the truth is that revisionism has no bulwark against the whims of the next revisionist that will invariably come along, armed with a entirely new set of perspectives, all of which can run in a contrary direction. Statutory revisionism is a legitimate power but, in our constitutional system it is a power relegated exclusively to the legislature, not the judiciary.

                  Regardless of whether you believe textualism, in any particular case, is being misused, unilateral judicial revisionism is not the answer. The answer to bad textualism, is good textualism. If a justice is interpolating, rather interpreting, and relying on textualism as a pretext, then the solution is to use textualism properly and arrive at the correct result as opposed to fabricating legal definitions just to spite the dishonest textualist.

                  If someone is lying, lying in the other direction does nothing to expose the original lie.

                  1. Gay and trans people have a sex. If you discriminate against them because they behave in a way you disapprove of based on their sex (meaning you wouldn’t have discriminated if they were a different sex, all else being equal), that’s sex-based discrimination. I’m not saying I endorse the argument (though I do), I’m just trying to explain it.

                    As for consequence-based judging, I mean come on. The entire reason we’re told that evangelical Christians get to impose the amoral degenerate Trump on the rest of us is because he’ll appoint judges who will do their policy bidding. They aren’t even pretending anymore. They still get a little extra credit though for pretending to be “originalist” decades ago.

                    My God, Republicans are the biggest recipients of affirmative action the world has ever known. That is some good fucking PR. PR darling. Sometimes words (like “originalist”) don’t actually mean things.

                    1. Under Title VII, discrimination can occur in two ways. First, an employer can discriminate “on the basis of sex” by treating members of one sex differently than members of another sex (i.e. favoring men over women, and vice-versa). Second, an employer can discriminate “on the basis of sex” by subjecting an individual to sexual stereotypes (i.e. “If you want to keep your job, you need to dress more provocatively.”).

                      Under which of these two theories are gay and transgender individuals protected? Assuming an employee treats *all* gay employees poorly, then it is not a form of prohibited discrimination. If gay men and women are discriminated against equally, it is not discrimination “on the basis of sex.” Their sex doesn’t factor into the discrimination equation; their orientation does. The same logic can be applied to transgender individuals; it is not the “sex” that is the root of the discrimination, but hostility or disapproval toward the notion that a person can change their biological sex. If all transgender individuals are discriminated against equally then “sex” is not at the root of the discrimination.

                      Therefore, we are left to try to fit discrimination against gays and transgender individuals under the “sex stereotype” analysis. Is firing a gay man or woman the use of a “sex stereotype”? This is a closer question. For example, if a man was fired for being perceived as “effeminate and submissive,” that is – not sufficiently masculine – then this would rightly be considered the prohibited reliance upon a “sex stereotype.” The same logic applies to transgender individuals. Indeed, the Second Circuit has clarified this approach in Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2017). Gays and transgender individuals *may* be eligible for Title VII protection provided there are factual allegations that some sort of stereotyping occurred.

                      However, let us assume that such stereotyping is absent. Let us assume there is no stereotyping at all. Let us assume there is an employer that doesn’t hire gay and transgender people. It doesn’t matter whether they are submissive, or aggressive, or feminine, or masculine. The employer is not concerned with their personality and, indeed, there are no facts to indicate that any personal characteristics were in any way impugned. There is a blanket policy; no gays, no transgenders.

                      Is this “stereotyping”? The answer is that it is not. It is, plainly put, a categorical objection to gay and transgender individuals. “I would have fired him/her no matter how they acted.”

                      In the above hypothetical, there is no existing framework under Title VII to conclude that there is any discrimination “on the basis of sex.”

                      What the complaining litigants in the cases at issue are attempting to establish is that such discriminatory conduct, in the absence of comparative mistreatment, and in the absence of stereotyping, must still fall within the ambit of Title VII’s prohibitions against discrimination “on the basis of sex.” However, there is no textual basis, or even a basis in legislative intent, for this conclusion. Sexual orientation standing alone, or identifying as transgender, standing alone, is not sufficient. The meaning of the phrase “on the basis of sex” clearly did not include a prohibition on “sexual orientation” discrimination when Title VII was enacted. Nor was it intended to.

                      The only way that sexual orientation or transgender identity can be included in the definition of “on the basis of sex” is, quite simply, by revising the phrase to (1) mean something other than what is understood to mean when Title VII was enacted and (2) ignoring legislative intent.

                      If Congress wanted to pass a law making the prohibition against sexual orientation or transgender identity unlawful, it could have done so. However, Congress clearly did not. If Congress wants to do so today, Congress is free to employ its legislative powers in pursuit of a new law. It is not the province of the judiciary, however, to rewrite Title VII.

                    2. I would begin by reading the opinion in Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2017). You can find it here: https://law.justia.com/cases/federal/appellate-courts/ca2/16-748/16-748-2017-03-27.html

                      I do not think this will be hard for SCOTUS to decide. In the absence of allegations of comparative mistreatment or overt stereotyping, orientation or transgender identity, standing alone, is not a protected class under Title VII.

  18. I’ve been reading Gorsuch’s book “A Republic If You Can Keep It”

    It is a collection of speeches and opinions on recent and past cases before the Supreme Court.

    If he holds to what he says, there is no way he is going to expand by judicial decision anything that should be done by the duly elected members of Congress. That is not a reflection on what he may think about “alphabet people” but an abiding belief that the branches of government are separate and should conduct themselves accordingly. Legislators should not delegate their job of making law to an administrative bureaucracy nor should judges legislate according to what their politics or what they think is right.

    “Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg, meanwhile…” are no longer in the majority.

    1. Far too many people, including many jurists, legal professionals, and politicians believe that judges are mystics operating pursuant to an ethereal, otherworldly code of moral calibration, capable of weighing competing considerations of public policy and emerging with unparalleled insights to which our society must invariably defer.

      This is nonsense. Judges have two roles. First, to act as fact finders, in appropriate circumstances, by weighing admissible evidence. Two, to determine the scope of legal terminology (contractual, statutory, or constitutional) and then applying the law to the facts before them.

      For some reason, also, judicial “interpretation” has come to mean, in the minds of those unacquainted with legal practice, something akin to “artistic interpretation” or “creative writing.” The law is not a Rorschach test. Not all answers are created equal. It is very disheartening to see otherwise intelligent individuals espousing an understanding of the judicial role so thoroughly divorced from the reality of what a judge does, and is supposed to do.

  19. Tony,

    Keep it civil, please. I’ve been respectful throughout the discussion, and you should do the same.

    Textualism is an analytic approach to constitutional and statutory interpretation. A valid argument can be made that the contemporary meaning of “sex” is drastically different than when Title VII was first enacted. However, under a textualist approach, evolving definitions do not govern the interpretive analysis. Laws are not passed with the expectation that material terms referenced therein are subject to an indefinite, undisclosed series of semantic mutations over time. That doesn’t just apply to laws; it applies to all writings. If a hundred years from now the word “sex” comes to be understood to include, for example, engaging in sexual relations with robots, that would not mean that discriminating against people who have sex with robots automatically falls within the ambit of Title VII.

    Words change. Definitions change. Public understandings of the meaning of words change as well. Laws are capable of changing as well, but in our system of governance, it is the role of the legislature to account for those changes by passing new laws or amending old ones. It is not a judge’s role to revise the meaning of words as they were understood at the time a law was enacted, but to determine what that meaning was.

    I have no dog in the fight and never expressed a preference one way or the other. I am simply pointing out to you how textualism works because you seem to be harboring some very deep misconceptions about the nature of the approach and its application in practice.

  20. Inside the Time Capsule (1965) — Normal Person, “So you mean to tell me if I hire a black man instead of a white man to mow the lawn I can’t fire and stop paying him without creating a case just BECAUSE he’s black?!?!!?”

    Yep; The Civil Rights Act of 1964 ENTITLED them over everyone else as it will be with every other nickle and dime “minority” club they can dream up. AND NO! The Act is NOT part of the Constitution.

    1. To be fair, if a Title VII plaintiff loses their case, and the court presiding over the matter determines the case was frivolous, unreasonable, or groundless, the defendant (that is, the employer) can recover their attorney’s fees **from the plaintiff.** This rule applies even if the plaintiff, rather than litigating the case to a conclusion, abandons their case or otherwise ceases prosecuting it.

      Given this fee shifting structure, a plaintiff is not free to simply concoct a baseless claim of discrimination entirely without consequences. Attorney’s fees incurred in defending against a discrimination claim are often in the hundreds of thousands of dollars, if not more.

      Second, in practice, many discrimination cases are dismissed outright on a pre-answer motion to dismiss under Fed. R. Civ. P. 12(b)(6). That is, even accepting the allegations as true, there is no claim.

      Third, most attorneys with any desire to preserve their standing in the profession, as well as their reputation among colleagues and the courts, turn away the frivolous cases; in my experience, they even turn away the borderline cases where the evidentiary deficiencies (that is, the apparent lack of evidence) are obvious or would pose a problem.

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