Supreme Court

Supreme Court Rules, 6–3, That LGBT Workplace Discrimination Violates Civil Rights Act

Justice Neil Gorsuch's majority decision offers a textualist argument for the ruling.

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Discriminating against an employee for being gay or transgender violates the Civil Rights Act of 1964, the Supreme Court ruled Monday in a 6–3 decision.

Justice Neil Gorsuch wrote the majority decision, joined by Chief Justice John Roberts and justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg.

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," Gorsuch argued. "Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

Title VII of the law forbids discrimination on the basis of sex; the heart of the dispute was what exactly that means. The three cases the court considered—Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and Harris Funeral Homes v. the Equal Employment Opportunity Commission—revolved around two cisgender men and one transgender woman who claimed they were fired from their jobs for being either gay or trans.

While courts and lawmakers have typically treated sexual orientation and gender identity as separate categories from "sex," a Supreme Court precedent from 1989, Price Waterhouse v. Hopkins, held that discrimination on the basis of whether a person is stereotypically feminine or masculine violates the Civil Rights Act. The court had already found that sex discrimination covers not just whether a person is male or female, but also ideas about how men and women are supposed to behave.

Does that cover discriminating on the basis of who people have sex with or which sex people present themselves as? According to today's court ruling, it does.

Gorsuch's participation in the majority decision should not come as a surprise. During oral arguments last October, he observed that sex did appear to be playing a role in the termination of the two fired men because they were fired for the sex of their partners, something that would not have happened if they were heterosexual.

Gorsuch's decision follows a textualist reading of the Civil Rights Act. While Congress likely did not consider the possibility that sexual orientation or gender identity would be included within the term "sex" back in 1964 when the Civil Rights Act was passed, textualists focus on the language used rather than legislative intent.

Some important passages from Gorsuch:

An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

Later in that same paragraph, Gorsuch explains how this also applies to the treatment of transgender employees:

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision.

Gorsuch's order concludes with a pure expression of textualism: "In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law."

This is a significant ruling in states that do not already have their own laws forbidding discrimination on the basis of sexual orientation or gender identity (only 21 states cover both categories already).

In his dissent, Justice Samuel Alito, joined by Justice Clarence Thomas, accuses the majority of legislating from the bench and rejects Gorsuch's argument that his decision is a textualist reading. They argue that sexual orientation and gender identity are categories separate from sex and are not included in Title VII:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice [Antonin] Scalia, but no one should be fooled. The Court's opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should "update" old statutes so that they better reflect the current values of society.

Their dissent is followed by an appendix of 11 pages of various dictionary definitions of the word "sex."

Justice Brett Kavanaugh wrote his own dissent. He wrote that it is the responsibility of Congress to amend the Civil Rights Act and determined that "As written, Title VII does not prohibit employment discrimination because of sexual orientation." He noted that the federal government has added new employment discrimination protections not through the courts, but via lawmaking. He argues, "Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway." He adds that by taking an overly literal textual approach, the majority is deliberately ignoring the ordinary definition of the words "sex discrimination" and how most people approach the phrase.

Read the ruling for yourself here.

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  1. I don’t advocate for discrimination in any way it’s fundamentally un-libertarian, however if private companies want to discriminate for any reason they should have that right

    1. SCOTUS only looked at whether the law covers the additional classes. It did not review whether Congress has the authority to legislate such private associations.

      1. I feel like we won’t see anyone try the “freedom of association renders the Civil Rights Act unconstitutional as applied against private entities” argument until/unless one of the “liberal” justices is replaced.

        You know Roberts wouldn’t take a stand, so it’s a losing argument right now even if you can sweep Gorsuch, Thomas, Kavanaugh, and Alito—which is a big “if.”

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        2. You won’t see anyone try a “Freedom of Association” defense because the only lawyers willing to take these cases are deathly afraid of a world where you can refuse a Christian service on the basis of religion.

          1. I accidentally flagged you. As we have no facing confirmation button.

    2. That only applies to socialist run media companies.
      Everybody else have to bow down and bend the knee.

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    3. Thank you. My black transwoman girlfriend’s life matters too!

      1. Who lives in Canada.

        1. On a $2500/mo ‘refuge’ stipend.

    4. A company is not a person. A person can discriminate, a business cannot. I fail to see how it’d be a “right” for a company to discriminate as what rights does a company have to begin with?

      It might be a stretch on this ruling but at least it’s forcefully pulling assholes ever so slightly into modern society. Let them be assholes on their own time.

      1. So when you were hired… where you interviewed by a person or by a company? Did the company review your application? Did the company shake your hand and say “Congrats! Welcome aboard!”

        Company is a short-cut term which, in reality, does not exist as its own entity but instead is a collection of individuals who, through agreement, work in concert towards a common goal of particular production or service-rendering. These individuals have rights. And as long as they have not contracted to voluntarily restrict these rights under certain terms, they reserve those rights at all times.

        1. In a libertarian world, I guess this means that a brothel could fire a woman who “transitioned” into a man?

          1. Fire? You can charge extra for that shit.

            1. Most of them don’t have the right proportions (e.g. shoulders, hips, arms, hands) to pass. Thai ladyboys are a notable exception.

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              2. Sounds like you got plenty of experience. These ladyboys were 18, right? Or do we need to put you in the same corner as Palin’s BP? I hope they were, because at least you’re an interesting read most of the time.

          2. In your world does a person who has fulfilled a contract automatically gain claim to other peoples’ lives, freedom, or property by virtue of simply “wanting” it and thereby having a claim to force the other party to “re-up” the contract even if they don’t want to?

            1. Would you have to specify the gender or sex for every requirement in the contract?

      2. “Companies” are merely organizations arising from the voluntary association of individuals.

        There doesn’t seem to be any real reason for an individual to lose constitutional protections because he/she joins a group.

        And there doesn’t seem to be any reason for a group to lose those protections merely because they formally organize as part of a particular legal entity.

      3. What a stupid argument. A company reflects the beliefs of the persons who run it.

      4. Freedom of association. If we use your logic then citizens United should be overturned

      5. A company is not a person. A person can discriminate, a business cannot. I fail to see how it’d be a “right” for a company to discriminate as what rights does a company have to begin with?

        Does a company have freedom of speech? Does the New York Times have the right to criticize Donald Trump? Could we outlaw BLM from demonstrating in public?

        Do two or more people somehow lose their rights when acting in concert?

      6. When exercising freedom of association, you lose all other freedoms?

        Now we’re up to libertarians against property rights AND libertarians against freedom of assembly here at Reason!

        1. wearingit is about as libertarian as I am democrat.

    5. Scientifically/biologically, homosexuality is an ideological condition.
      It’s an affinity, a preference.
      As far as I know, no physiological distinction has been found between heterosexual and homosexual individuals.
      Religion already crossed the immutable traits threshold, but was distinguished by being the only exception.
      What is the justification for not including political positions as protected?

    6. Libertarians have to support the freedom of private actors to act in non-libertarian way, or libertarianism is meaningless.

    7. What is “fundamentally un-libertarian” is for the government to force businesses to hire people they do not want to hire…or to force bakers to bake a cake.

      But here we are, the end result of +50 years of Congress created laws for “protected” classes of people, rights that other people do not enjoy, which has inevitably led to more groups demanded to have favored status.

      Orwell would weep.

      1. Orwell would be writing the sequel.

    8. And it’s libertarian to want government out of every institution including education and all of society privatized. Ergo discrimination should be legally allowed to exist EVERYWHERE!
      You can’t be against something and then fully enable it to flourish and exist unbridled.

  2. Later, in a party at Justice Alito’s mansion (or possibly an Embassy Suites meeting room), Justices Thomas and Kavanaugh snorted rails of coke (or possibly sipped 6 oz. cans of Diet Pepsi). Later they lured Sotomayor into a bedroom in an event that may or may not have happened, and nobody can seem to accurately recall.

    1. Did Kavanaugh grab Sotomayor by the “soft taco”?

    2. Thomas, famously, drinks coke.

      1. Hmm, as I recall, I thought it was Anita’s can of coke. I could be wrong.

    3. So they got all Kavanaughty on Her?

  3. I read the facts summary in the links.
    Interesting way of selecting what facts to include, and what to exclude.
    But just to take the middle one; what would be the result if a company did NOT fire a male who was accused by a female of “inappropriate touching” in the course of the business interaction?

    1. It will be interesting to see how Gorsuch et al. try to unfuck themselves when Idaho (or New Hampshire, or Washington, or Georgia, or Tennessee, or Missouri…) forces the question, “OK, great dumbfucks, how do we keep trannies out of female college sports?”

      Especially if RBG is dead.

      1. Who cares? Women should reap what they have sowed. If American needs gender equality, why should women deserve special, sex-segregated benefits (e.g. independent soccer league, female computer science scholarships)?

        1. Exactly.Way back in the dark ages of the seventies, a wise philosopher commented on the (then) new ERA; “I fully approve. If we don’t get the women back to being just equal now, it may never happen.”.

        2. independent soccer league, female computer science

          You’re pretty naive if you think that this is going to move us back from general scholarships and women-only scholarships back to just general scholarships. It’s dead certain we’ll get general, women-only, MtF, FtM, etc., etc. scholarships. We’re way past women reaping what they’ve sowed. It’s (sons and) daughters reaping the fruit that their gay uncles and trans aunts have sowed.

          1. We need some brave libertarian men to take one for the team and “identify” as a woman so we can see how far the courts will go. I want to see transwomen breaking Olympic records, winning MMA cage fights, and getting hired to government EEO positions reserved for women. I think the transgender community now accepts transwomen who don’t feel the need to have surgical modifications or hormone replacement “therapy”.

            1. “identify” as a woman

              I always thought that I (male – not otherwise weird) should apply for that bra-fitter job I used to see ads for. I would get rejected, of course, because I am not qualified but I fantasized about taking that one to court.

              Seemed like it would be a profitable gig to get settlements.

            2. We have one already. I think Caitlyn Jenner could beat any 70 year old woman in almost any athletic endeavor.

      2. I’m guessing that such unfucking won’t need to take place, given that people who are biologically identified as male are already kept out of women’s college sports. On the basis of this decision if a biologically male athlete who presents as male can legally be kept out of women’s sports, a biologically male athlete who presents as female can too.

        That said, although the research is still in early stages, it appears that runners who transition male to female get proportionately slower (i.e. they wind up being as competitive against women as they were against me). I haven’t seen anything that covers whether this applies to speed only, or speed *and* strength.

        https://www.sciencemag.org/news/2018/07/scientist-racing-discover-how-gender-transitions-alter-athletic-performance-including

        1. That said, although the research is still in early stages, it appears that runners who transition male to female get proportionately slower (i.e. they wind up being as competitive against women as they were against me). I haven’t seen anything that covers whether this applies to speed only, or speed *and* strength.

          This is yet another example of Science’s continued march towards SJW idiocy (you’ll note the article you cite was written by a writer, not a scientist or researcher).

          Are you going to tell me that Bruce Jenner’s 6’2″ stature had nothing to do with his success or are you going to argue that, a year or more after transitioning, he’s significantly shorter than 6’2″?

          It’s garbage confirmation bias, it’s pretty much the impetus for the study and the repeated self-orientation bias is evident throughout the article. It’s a selective bullshit agenda looking for validation.

        2. how about skeletal engineering…men can create torque to a degree that no woman can ever match…why are you so anti-science?

          1. It’s fundamentally retarded. “It’s tough to find significant sample sizes but we found some transgender athletes who lost *some* ability after conversion (most of them older). If you use the right kind of math, you can equate them to cis-female women, ergo, trans women are women*. Well, except for testosterone, which we know not to work as a direct metabolic enhancer and to confer lasting physiological advantages but the key is, trans women are women.”

            *Normally for such simple and obvious comparisons, you wouldn’t need math and direct emperical comparisons would work but this is science and it must be settled.

    2. On the basis of the decision in the summary, in the absence of evidence to the contrary, I would assume that either the company didn’t maintain that he was fired because of the accusation of inappropriate touching, or the lower court found that it was used as pretext.

  4. Gorsuch is right, as usual. The law says what it says. These activist judges need to stop pretending like they have some magical insight into what laws are “supposed” to mean, when the plain text of the law says otherwise.

    1. You do know that this conundrum was addressed by Jefferson back when this whole thing kicked off… right? He said that in cases where judges could not determine clear legal guidance from facts and law before them they should resort to looking at what was written at the time by those who supported the particular law in order to discover provable intent and then follow it. Wish I could recall where/when he said that so I could link… perhaps someone can help me out?

    2. I thought Gorsuch had a reasonable argument that the rebuttal from the conservative trio *quoted by Reason* didn’t even attempt to address, though I suspect Reason may not have given their actual argument, because The Narrative.

      Reasonable, but probably not correct from an originalist viewpoint.

      The question is what constitutes “the same” behavior.

      Is it the employee having a sexual preference for a particular sex?
      Is it the employee having a sexual preference for the opposite sex?

      The correct interpretation from an originalist perspective is the latter. Gorsuch’s interpretation is reasonable from the text, but not in historical context. It’s just not what they meant at the time, and not how people read it at the time.

      I suspect the conservatives did in fact point this out in their dissent.

      1. Alito does make such an argument.

        Reason’s representation of his argument is #FakeNews. Shocked, I am.

  5. the first Gorsuch argument is simply absurd..he wiped out “sex” as a simple biological identifier…..

    1. Not at all. Both of his arguments rely on “sex” as a simple biological identifier. In each of these cases, a person biologically identified as male was fired for exhibiting behavior for which the company would not have fired someone biologically identified as female.

      1. I disagree.
        In the skydiving case, a woman also would have been fired for inappropriate touching.
        In the funeral home case a “real” woman whose appearance and actions combined to drive away customers would have been fired.
        In the ‘fraud’ case, I cannot find enough detail to determine if it was pretext or not, but if true a woman thief also would have been fired.
        My biggest complaint with this ruling is the combining of the cases that seem to be quite different.

        1. It’s always notable when people try to dig up defenses that even the lawyers didn’t make.

          Simply put, no. All were agreed that the men/women were fired for being gay/trans. The disagreement –and the question before the SCOTUS– is whether CRA Title VII prohibits that.

      2. nope. he made behavior an inherent attribute. try again

      3. The statute says nothing about behavior. All is says is sex and Congress clearly meant an employer cannot discriminate based upon the employee’s gender, i.e., male or female (subject to certain exceptions, e.g., Hooters waitresses). The majority goes off the reservation when it concludes that the law bars discrimination against a person exhibiting non-stereotypical behavior for his or her gender.

        1. Price Waterhouse v. Hopkins (1989).

          Yes, discriminating against a woman for behavior that would be acceptable in a man, and vice-versa, is sex-based discrimination.

          If you want to argue that behavior-based-discrimination can’t be considered, you have to start in 1989, not 2020.

    2. I don’t believe LGBTQ persons should be discriminated against, but to suggest this was “textualism” is absurd.

      Kavanaugh rightly points out that Congress has tried to amend the CRA of 1964 to add “sexual orientation”, yet has consistently failed to do so. If Congress was able to recognize the gap in Federal protections, then how can this ruling be “textualism”? Was Gorsuch reading text that us rubes can’t see?

      I can’t believe Reason is somehow okay with the judicial branch usurping power from Congress.

      ………Oh wait. Yes, I can.

      1. You’ve obviously never been a victim of gender fraud committed by a “transwoman”.

      2. What was the basis for the court’s finding that the Constitution would allow the Federal Government to make the 1964 Civil Rights Act, law? Especially in application to the private sector

  6. I think people who discriminate on the basis of sexual orientation and gender identity are disgusting people. But Justice Gorsuch really stretched the meaning of sex here legislate his desired outcome. Disappointing because I thought he might be the one to champion getting back some constitutional order.

    1. I think people who discriminate on the basis of sexual orientation and gender identity are disgusting people.

      So you hate lesbians who refuse to accept cock? You support men who (don’t) take hormones so that they can compete against women?

      People who discriminate on the basis of sexual orientation or gender identity aren’t any better or worse than those who discriminate on the basis of smoking habits or height or weight.

      The disgusting people are the ones who put their sexual orientation and gender identity ahead of less broadly applicable personality traits.

      At least the vegans, Apple users, and crossfitters aren’t begging for special protections under the CRA.

      1. “At least the vegans, Apple users, and crossfitters aren’t begging for special protections under the CRA.”

        Yet – – – – – –

    2. I think people who want to normalize a man whose idea of a good time is ejaculating into another man’s anus are disgusting people.

      1. And libertarians want to protect ur right to deny employment, housing, education, food, service or anything else because that’s what makes freedom great.

        1. Do they? I don’t see much “protecting” of any private property or association rights these days.

  7. At any point Congress could have gotten off their fat butts and simply wrote a new law protecting these groups. Gorsuch is my favorite judge, but I think he’s wrong here.

    1. Trivialities like civil rights have to wait until the 2016 election is finally overturned. Then the democrats can return to pretending they were elected to govern the whole country and not just a few coastal cities.

    2. If they do that they alienate the people who disagree; Democrats don’t want to piss off blacks, and Republicans don’t want to piss off conservative whites, and the Supreme court is conveniently immune to the voters’ wrath, so they have to do the heavy lifting on this.

    3. Gorsuch is my favorite judge, but I think he’s wrong here

      I agree, I’m a little disappointed in him, not for the ruling but his supporting rationale.

  8. Seals clapping because they like the results

    Words have no meaning to activists other than what they want them to mean at any given time. Why use arguments and convince people of your position when you can have half a dozen people make up whatever they want, as if we live in a dictatorship.

    1. Just for the record; the seals clap to get food. They have no concept of the results in terms of like and dislike.
      Don’t be speciesist,

    2. “as if we live in a dictatorship.” Given the behavior of Congress and Federal agencies, we don’t?

  9. see’ya textualism…nice knowing you

  10. Thanks for destroying girls high school sports, Neil…bravo

    1. Sow the wind, reap the whirlwind.
      This has been coming since the seventies.

    2. High school girls and boys have better use for their time and energies than sports.

  11. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex

    aren’t the transgendered already members of a different sex?

  12. “If the employer fires the employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

    “If the employer fires the employee for no reason other than the fact he is used the women’s restroom, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

    “If the employer fires the employee for no reason other than the fact he took a few sick days for menstrual problems, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

    1. So this means that there can be no benefit given to women that can’t also be given to men (like female only sports, scholarships, HR policies, etc).

      Well done feminists

      1. To keep readers from having to remember things above;
        Sow the wind, reap the whirlwind.
        This has been coming since the seventies.

      2. We are all born equal before the law, after that it’s up to each of us as individuals.

    2. 1) Damn straight. Sex segregation ultimately has no more merit than race-based.

      2) Sick days are sick days. Employers have no business inquiring as to or verifying the specific medical condition that a worker takes a sick day to address.

      1. What this will mean is employers will get rid of sick days and just give a bundle of personal days to be used as vacation or whatever. That way they can get out of the business of determining who is really sick.

        And that means people will come to work sick more often because not going means losing a vacation day. So much for being so concerned about pandemics and such.

        1. that’s what we do, it’s all PTO, we found people call in sick a lot less when there isn’t separate categories.

          Losing sick time was an incentive for people to call in sick when they weren’t really sick. Keeping that to have a longer vacation is an incentive to not call in sick unless you really are

        2. My employer has already done that. Except that they’ve got temperature scanners on the doors that sound an alarm if somebody walks through with even a slight fever, and a guy who goes around checking temperatures and recording them every day.

      2. Sick days. The money to pay an individual for work not done comes from prior earnings kept back by the employer for that patrician purpose. The loss of that person’s contribution to the enterprise’s activity is a loss to all and makes scheduling difficult at least. Days taken as sick days without notice is an aggression against all.

        1. The Nazi party would agree with u!

    3. Yeah, don’t expect this “neutral textual analysis” to be applied neutrally in other cases. It is a one-time-only approach.

    4. Material differences have always made such discrimination okay.

      That said, your second example is either talking about a transman (who can have menstrual problems) or someone that’s lying to the boss. So either a case where it should be permitted, or there’s a different problem going on.

  13. Gorsuch’s line of thinking is clever, and has some appeal, but I wonder if it would be applied equally in a race-based context.

    For example—Employee A, a black person, sets up a monthly networking event aimed at black colleagues. Anyone can attend, but it’s called the “Black Employees’ Networking Association” and has a stated mission of connecting black employees with one another.

    Employee B, a white person, does the exact same thing for white employees.

    Under Gorsuch’s conceptualization (As I understand it), it would absolutely be race-based discrimination to fire Employee B. The conduct isn’t problematic (setting up a race-based networking group), it’s only problematic due to the race of the employee.

    For some reason, I don’t think you’d see a 6-3 opinion in that case.

    1. These decisions are driven entirely by the personal prejudices of the Justices. It is the same reason why gays got a right to marry but polygamists did not. The judges like gays but don’t like polygamists. It is pure results driven tyranny.

    2. Your error is assuming that anyone in the majority, including Gorsuch, was engaging in a neutral textual analysis.

      1. Well, I’m not assuming that (per my last paragraph, I’m expressly doubting it).

        I think Gorsuch might be consistent in that scenario—but I sincerely doubt the other 5 justices would be.

  14. If you can’t discriminate on “gender identity” then say goodbye to women’s sports. You can’t have women’s sports if biological males can compete in it. You can also say goodbye to women’s colleges, women’s scholarships, and every other set aside or accommodation for women. Sure, you can still have those things but any man who wants to say he feels like a woman that day will have to be included.

    Gay rights have been something that suburban whites have supported for years because it was a cost free way to virtue signal. They were not the ones who were having to accept gay couples as if they were married over their religious beliefs. It was all something that happened to other people and a vehicle to feel virtuous. Now, it is going to happen to them. Their daughters are no longer going to have access to sports and scholarships and will be showering with boys. If nothing else, they can finally pay some price for their virtue signaling.

    I would like to think there is going to be a very significant backlash when people understand what this decision actually means. But, who knows. You would think people would finally be a bit angry when the left and its judicial agents finally come for their daughters and wives. But who knows. If there is, then I think gays will likely suffer as well since they have decided being gay is effectively the same thing as men demanding to shower with young girls. Not sure why gays did that but they did and there may be consequences for it.

    1. “…but any man who wants to say he feels like a woman that day will have to be included.”

      Actually… he wouldn’t even have to say he feels like a woman. The mere fact that he isn’t allowed BECAUSE he is a man is now the illegal part. Per the ruling, suppose a man was in all ways straight yet, for some reason (it’s hypothetical… just go with it) has sex with a man. If he is fired… it isn’t because he’s gay (he’s not). He’s fired for doing something that would be OK if he were a woman. He’s sexual preference is actually irrelevant per Gorsuch’s arguments. Being trans is also irrelevant. It is the BEHAVIOR that matters… If that behavior would be tolerated had the person’s gender been different, then it is illegal discrimination.

      That means that this ruling COULD end up being a giant hole being blasted in all sorts of special-interest carve-outs. The special-interest characteristic becomes irrelevant.

      1. That is the other thing with this, it is going to cause people to lose a ton of privacy. The only way an employer can ensure they don’t discriminate against gays is to know which of their employees are gay. And that means you are going to have to tell your employer your sexual proclivities. It also brings up the issue of just exactly who is gay? Is giving head in boarding school make you gay? Does being gay mean only having sex with men? What about people who are bi? Are they gay and covered by this statute?

        1. That is the other thing with this, it is going to cause people to lose a ton of privacy. The only way an employer can ensure they don’t discriminate against gays is to know which of their employees are gay.

          Logically yes, in practice, I suspect not. This will simply be used as a cudgel for fired employees to use against employers. If you fire me and I am gay, whether you knew it or not, I’m coming after you in the courts.

          1. I would agree except for disparate impact. If a facially neutral employment policy disproportionately affects a protected class, which gays now are, then the employer is screwed. So, large employers at least are going to have to know who is and who is not gay to ensure that none of their policies have a disparate impact.

            That will take a few years to happen but it will. At first, it will just be gays suing because they lost their jobs likely for reasons that had nothing to do with their being gay and gays going around suing anyone who dares object to their sexual proclivities.

            1. Just like women and people of color have been practically flooding the courts with false discrimination claims all this time. Don’t see why the gays shouldn’t be permitted to get in on the sweet frivolous lawsuit action you think is such a scourge on society.

        2. You’ve been claiming this for years, John.

          Still hasn’t happened.

      2. That means that this ruling COULD end up being a giant hole being blasted in all sorts of special-interest carve-outs. The special-interest characteristic becomes irrelevant.

        I said about four years ago that the transgender issue would in fact blow a massive hold in all sorts of special-interest carve-outs, especially on the feminist front. So far, I’ve been correct. The ‘terf’ feminists saw where the cultural taillights ahead of them were going, and that’s why they started pulling off the road.

        1. Is thst why JK Rowling is in the hot seat tight now?

    2. Yep, although I’m kind of looking forward to all these “strong independent” women and lesbians getting curb-stomped in their own sports by a bunch of males that decided to troon out. Watching Megan Rapinoe get body-blocked into the turf, or Britney Griner or Breanna Stewart get posterized by some dude in a wig would make this stupidity somewhat worth it.

      Hell, I bet if Usain Bolt decided he was a woman, he’d probably be able to win gold medals for another 2-3 Olympics, at least.

      1. It is pure insanity. The whole thing is driven almost entirely by men. You never see the woman wanting to shower with the men. It is always some guy who like lingerie wanting to shower with women. And it is they most misogynistic thing ever. It totally deprives woman of any status derived from being a woman. It makes being a woman just something you call yourself

        How women have not revolted and put a stop to all this is beyond me. I am dumbfounded that women are putting up with this.

        1. MtF troons are a level of insane that no one can really comprehend. They have a male’s desire to dominate others combined with a woman’s passive-aggressive vindictiveness. It’s not really an accident that a lot of them display intense levels of autism, especially the ones who work in the tech field. These are just insanely socially maladjusted people looking to force others to accommodate their lunacy.

        2. Some have tried. So far they aren’t winning.

          TERF

        3. This is what the JK Rowling controversy was all about. Anyone who defends womanhood as being an artifact of biology are being ostracized from the progressive Left.

        4. Ash Whitaker.

    3. What is going to be fun to see is the logical contortions necessary to required to say that it is impermissible discrimination for women’s sports not to accept anyone who says they are female, while explaining how a sports division that is limited “women identifying” is permissible under the laws and precedents being set now.

      Discrimination law is inherently irrational.

    4. If you can’t discriminate on “gender identity” then say goodbye to women’s sports. You can’t have women’s sports if biological males can compete in it. You can also say goodbye to women’s colleges, women’s scholarships, and every other set aside or accommodation for women.

      You say that like it’s a bad thing.

  15. Supreme Court Rules, 6–3, That LGBT Workplace Discrimination Violates Civil Rights Act

    Of course the Civil Rights acts violates several areas of the constitution itself.

    1. Perhaps, but none of the parties to the cases were arguing that.

      1. Because the Supreme court already let everybody know they don’t care, so there wasn’t any point in trying to litigate it.

  16. sex discrimination covers not just whether a person is male or female, but also ideas about how men and women are supposed to behave.

    Hopefully transgender activists will take this message to heart.

  17. Gosh, I was told when Gorsuch was appointed that he would turn this country into a fascist paradise.
    What happened?

  18. Oh good. The Atlanta lesbian police chief can sue to get her position back.

  19. This decision is likely to have the perverse effect of hurting openly gay people. Now hiring someone who is openly gay means assuming serious liability risk if you ever plan to fire them. So, this decision creates the incentive to never hire gays in the first place and thus not have to worry about being sued. As long as you don’t ask about people’s sexual preferences, it would be very difficult if not impossible to prove you didn’t hire someone because they were gay.

    1. Closeted when they hire, flaming when they fire…

      1. The problem is that they have to prove you knew they were gay when you fired them. If you didn’t know, then you can’t be held libel.

        1. That’s why, if one was smart, they’d randomly throw in “As I told my (same sex partner) last week anytime talking to anybody in any position of management.

    2. We’ll just have to rely on our gaydar. Or the fact that most transexuals look fucking awful.

    3. This decision is likely to have the perverse effect of hurting openly gay people.

      Slightly disagree. It’s going to turn into an employer version of Title IX. Expect a lot of poor and black people to get figuratively fucked over for having sex on the job.

      The unification of orientation and identity is the lynchpin. We keep saying/thinking, “Would the company fire a man for having sex with a man when they wouldn’t fire a woman for having sex with a man?” The problem is that, because of gender identity, every definition of ‘man’ and ‘woman’ in that sentence is entirely subjective. Since they’re subjective and must be inclusive, they’re effectively worthless as stipulators. The sentence them becomes “Would the company fire a person for having sex?” Which, the company then becomes just as involved in policing approved/unapproved sex as any University campus.

      Forget about gay/straight/trans/other. If the company hears about you having sex, it’s going to be forced to take action to protect itself. Whether that’s a pre-emptive firing or a sanctioning because you were accused of having sex or performing sexy activities with another human, male, female, or other being up to the employer and how lucky they feel.

    4. As has been seen in the 20-odd states that have protected sexual orientation for years.

      Oh, wait, no, that hasn’t been seen at all.

  20. It is true that Gorsuch couched his opinion in textualist language, but he did so in a way that is indistinguishable from a results-oriented approach. It is difficult to take something seriously as a neutral, let-the-chips-fall-where-they-may textual analysis if almost nobody at the time would have understood the words of the statute to mean what you now say they mean. Call it fig leaf textualism — think up a facially-plausible argument that supports your preferred result, even if it’s not the best interpretation of the common understanding of the statutory language at the time of its enactment, and you can claim to be engaging in a textual analysis.

    1. Textualism is not originalism by another name. It is not concerned with what the text might have meant at some point in the past.

      1. It is not concerned with what the text might have meant at some point in the past.

        “At some point” as if “what did those words mean when the bill was passed” is some random question.

        1. It’s not random, but “what did those words mean when the bill was passed” is Originalism, not textualism. there is some overlap, but they aren’t the same.

          1. “what did those words mean when the bill was passed” is Originalism

            No, that’s textualism. Originalism is “what did the drafters intend this to mean?”

    2. Yes, I think there is an interesting subtext here, especially if you work someplace like the Bay Area. The reverse to the examples should also be true – you can’t be fired for just being a hetero male who likes being a hetero male. Which is far more likely to happen in most tech companies.

  21. “Discriminating against an employee for being gay or transgender violates the Civil Rights Act of 1964”

    Besides the obvious attack on religious liberty, this doesn’t bode well for women who dont want to share a restroom with the creeps in their office.

    1. If Christians want so much liberty maybe they could try not being assholes all the time.

      1. If Christians want so much liberty maybe they could try not being assholes all the time.

        Now do blacks or shove your CRA sideways dumbfuck.

        1. You don’t even know why you believe the things you do.

  22. Supreme Court: Can you be forced to hire a severely mentally ill individual? Yes. Will the Supreme Court protect your second amendment rights? No.

    1. Yeah, seems the whole Social Contract is being ignored by the elites. Might be time to reconsider it.

      1. Given that all the “elites” do is print free money for Wall Street, we’ve been ignored for a long time.

  23. I’m thinking I should change my sex on my driver’s license to “female” next time I renew, just to fuck with the morons acquiesing to this bullshit.

  24. If Dana Chauvin were leaning on George Floyd’s neck until he died, would they still have fired her?

    If a male police officer strip searches a female, is that a problem?

    1. Or if a man says he is a woman and demands that a woman strip search him, it seems to me that the police have to respect that now. This is the worst decision since Plessy v. Ferguson and easily the most irrational decision ever surpassing even the high bar of Ogberfell.

    2. Your last statement is interesting…

      A woman has sex with a male… not fired.
      A man has sex with a male… fired.
      Ergo discrimination based on sex of person doing otherwise identical things.

      A women strip searches a woman… no complaint brought.
      A man strip searches a woman… complaint brought.
      Ergo discrimination based on sex of person doing otherwise identical things.

      Granted there are massive differences in context… but the underlying principle of what is “right and wrong” should be the same in both (which, I know, is not a 1-to-1 with what is or should be legal… but it is interesting to play out the ideological ramifications).

  25. In other news, the Supreme court told gun owners to go screw themselves. Maybe literally, given this ruling.

    They took every single gun case before them, and tossed them all, despite circuit splits and gross violations of the 2nd amendment.

    Ten freaking cases, and they rejected every one of them.

    1. Abortion and sodomy are the only rights protected by the BOR and even those are subject to the whims of our new robed tyrants.

    2. I think the Liberal and Conservative Justices are unsure how Chief Justice Roberts would vote in any of these cases and so both sides decided to play it safe by denying cert. If President Trump replaces a Liberal with a Conservative or President Biden replaces a Conservative with a Liberal, then the Supreme Court will take a Second Amendment case.

      1. We’ve been hearing that excuse from the apologists for ten years now, but previously, about Kennedy.

  26. Would this apply if somebody was fired for being heterosexual, and the person proved that? Like if a gay business owner only wanted to employ other gay people. Honestly curious.

      1. Yes It should

        FIFY. And even that answer assumes that it doesn’t stumble over its own oxymoronic ideological bullshit. Can a gay business owner fire a male or FtM employee for going topless when it would fire a female employee for doing the same? Fuck knows.

  27. “Libertarians” overjoyed as private property rights are further eroded by legal positivism and leftist cultural subversion

  28. Gorsuch – so disappointing this time.

    Sex in terms of the 1964 CRA meant biological sex, not who you had sex with. The entire question of who you had sex with was avoided by the 1964 CRA.

    Better that the majority had struck down that section as violating the 14th Amendment’s Equal Protection section (for leaving out gays etc) than for the SCOTUS to redefine the meaning of “sex” in order to get to ” the right answer”…

    1. As clearly explained, you can’t discriminate against gays without also discriminating on the basis of sex. The burden would seem to fall on employers who want to fire people for being gay to figure out how they can do it without referencing their sex.

  29. So, does this mean the Little Sisters Of The Poor cannot bounce the occasional tranny?

  30. State’s will to replace an individual’s personal choice over his property. Don’t be astonished at the PC riots. PC has been already legislated and, thus, must be enforced. Collectively.

  31. Might as well just vote for Biden. Voting for Republicans doesn’t get us conservatism, so why bother?

    1. Aren’t you happy about the tax cuts? Conservatism is mostly about the tax cuts.

      1. No. The tax cuts were a disaster.

  32. Judicial Doppler effect…the farther away from the event the more broad the language is perceived as being. There is no doubt that the majority is using its perspective and not those of Congress at the time.

    “an otherwise identical employee who was identified as female at birth” well, that statement could prove interesting.

  33. This really confuses the issue even more. Employers are required to treat men and women equally in dress codes or appearance codes. If a trans is allowed to dress like a women they would be required to allow all men to dress like women or can they still require a man that is trans to dress like the other men? If you are what you say you are can you change on a daily, weekly or monthly whim? Are they required to open bathrooms, locker rooms and showers to how you identify that day? Is a woman police officer required to fondle a man that thinks he is a woman if searched? Does that man that thinks he is a women get maternity leave if he identifies as a pregnant woman? Will the companies insurance cover the same for him as it does for women? The world is getting confusing and this decision only adds to it.

    1. The world is getting confusing and this decision only adds to it.

      The world isn’t getting confusing. People are trying to induce legal confusion to spite their enemies and placate their allies.

      At the end of the day, employers can still pretty much hire and fire whomever they please and, as libtards would recognize in any other regard; another hoop for employers to jump through is another opportunity for the law to fuck with the poor and minority populations.

      But some idiotic opportunists and a good number of useful idiots want to pretend that this was some kind of victory for some people and ignore the obvious implications.

  34. I think this is a neutral day for textualism but quite a bad one for originalism (the reading of dead legislators’ minds). It won’t be remembered as an endorsement for a judicial outlook but as a civil rights victory. Textualism was just a convenient rationale.

    I’m not sure what the dissenters are going on about. Something about butt pirates?

    1. I’m not sure what the dissenters are going on about. Something about butt pirates?

      Yeah! Fuck business owners! Hiring and firing people according to their whims… those bigots are why we have fascism in the first place!

    2. I guess it shouldn’t surprise me at all that you don’t give two shits about fucking over female-owned businesses, female employees, and female customers. You’ve always been the most underhanded and scummiest of shitbags like that.

      1. Underhanded like pretending that you’re looking out for the weak and vulnerable while arguing for taking away all protections against discrimination?

  35. Gorsuch’s facile arguments get worse each time you read them

  36. Social Conservatives: “Textualism and Originalism are great- except when I don’t get the results I want!”

  37. I cannot help but wonder if some of the conservative justices, Justice Robert in particular, feel burned by the Congress and state legislatures that refuse to address issues leaving the court to decide. The Court passes it back to the Congress/legislatures saying you need to update the laws, the Congress/Legislatures then do nothing and the Court catch hell for giving them cover. This happens with voting rights and immigration. Much like executive orders, the Court makes decisions stepping in where legislators fail.

    1. if Congress chooses not to do anything…then that’s the answer….that result does not imply some sort of market failure that the Court needs to “fix”…

      1. Not unless you start from the assumption that liberalism is the “right” answer.

      2. It is legislative bodies job to write laws and to update them as needed. If they fail to address them the courts and executive branches will have to address them. Remember had the Congress could have amended the CRA to say that homosexuality or gender identity are not covered by the act. Failure to update the CRA to contemporary standards is not a decision it is cowardice, a quality in no short supply in Congress and state legislatures.

        1. try again….again Congress can choose not to do something…that’s fine…that does not imply anything you are stating, not at all…not even close

          1. Wow. I like to work for you, so I could choose not to do my work if I don’t feel like it. Legislative bodies at local, state and federal levels have the job to make laws and update laws. If you do not wish to do that, don’t run for office. The salary and benefits are good but I expect you to do your job.

            1. they have no “job” to make laws…they sit as a legislature of the people…if no law is required at a certain time, nothing is then done…there is no positivist obligation…people like you are terrifying

              1. Your assumption is that no law is needed, yet laws need to be periodically updated to reflect the needs and values of society. Failure to update laws leads to a necessity for courts or executives to step in with remedies. In this case the premise of the CRA is questioned and SCOTUS provided the answer. I believe that regardless of how the Congress or state legislatures addressed the issue it would have been better for them to have provided the answer. The legislative bodies could have said CRA does or does not address discrimination based on sexual orientation or gender identity. Instead the court is asked to step in and regardless of the outcome it is then accused of “legislating from the bench”.

                1. “yet laws need to be periodically updated to reflect the needs and values of society”…nope not at all… based on what? …. additionally, what need? (other than expanding the corporatist state, seriously its like we are Egypt in the 70s)….. what values are being updated?…the further eroding property rights and associative rights of business owners? ..that value does not need to be expanded, but rather limited to protect the minority that is business owners in this society

                  1. “based on what?”

                    We live in a democracy that allows the individual the right to petition the government for redress of wrongs. The individual’s petition is a challenge to the law and must be address. In some cases like the one before SCOTUS this require a reexamination of the law in the light of the current needs and values of our society. The same beliefs allow a business owner to petition as well as the employee.

  38. When did it become popular for “discrimination” ( whatever that means ) to over-ride individual property and the right to it there-of?

    If I kick Zarda out of my house solely because he’s gay; does he get “civil rights” that allows him to re-enter against my own will?? Am I going to get a prison sentence because I insisted Jackie wasn’t invited to watch the game in my house just because she’s a woman?

    Social justice warriors are growing their Dictation powers more-so every day.

    1. That’s the fatal flaw TJJ. They claim that “public accommodations are different,” but can not articulate any reason why. If it’s so wrong to not serve someone at your PRIVATE business because you don’t like him for whatever reason, such that the state needs to step in and use its guns to make you do otherwise, why is it not so wrong to refuse to date someone or host them for a dinner party for the same reason?

      There’s no limiting principle.

      1. The reason you are looking for is the word “public”. Which imply everyone white, black, man, women, gay, straight. If your business is open to the public it is open to everyone. Is your house public, can I as white heterosexual male walk in anytime. No, your house and my house are not public spaces. You can as a business limit based on certain principles. A bar for example can exclude people (all people) under 21. You may be wholesale business and not serve the general public, but within the public you serve you must serve all. Remember before we had the “public accommodations” we had “Jim Crow”, is that what you propose to go back to?

        1. “is that what you propose to go back to?” – For privately owned business? I think there’s a big fat case to make on the basis of “owned” property.

          The biggest flaw in your presumption with hiring and firing employee’s is that employee’s aren’t just the ‘public’ and employment isn’t “open to everyone”.

          Ever see the sign, “Employees Only”. Doesn’t that make that area non-public by your own argument.

  39. In a 2005 article published by National Review, Gorsuch argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” and that they are “failing to reach out and persuade the public”. Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals’ “overweening addiction” to using the courts for social debate is “bad for the nation and bad for the judiciary”

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