LGBT

Textualism and Purposivism in Today's Supreme Court Decision on Discrimination Against Gays, Lesbians, and Transsexuals

The decision in Bostock v. Clayton County is well-justified from the standpoint of textualism (a theory associated with conservatives), but less clearly so from the standpoint of purposivism (often associated with liberals).

|The Volokh Conspiracy |

Supreme Court Justice Neil Gorsuch, author of Bostock v. Clayton County.

 

Today's Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 forbids employment discrimination against gays, lesbians, and transsexuals is well-justified on the basis of textualism—a theory of legal interpretation usually associated with conservatives. By contrast, it is less clearly right from the standpoint of purposivism, more often associated with liberals, such as Supreme Court Justice Stephen Breyer. The Court's opinion in Bostock v. Clayton County was written by Justice Neil Gorsuch, a conservative known for his adherence to  textualism and joined by four liberal justices, as well as the conservative Chief Justice John Roberts. Three conservative justices dissented.

The relevant text of Title VII states that it is "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

Justice Gorsuch's majority opinion effectively explains why discrimination on the basis of sexual orientation qualifies as discrimination "because of…sex" under the plain text of the law:

From the ordinary public meaning of the statute's language at the time of the law's adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn't matter if other factors besides the plaintiff 's sex contributed to the decision. And it doesn't matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred.

The statute's message for our cases is equally simple and momentous: 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 male 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….

Gorsuch also explains why sex discrimination is present here even if sex was not the sole factor in the employer's decision:

Nor does it matter that, when an employer treats one employee worse because of that individual's sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing "because of sex" if the employer would have tolerated the same allegiance in a male employee. Likewise here. sexual or transgender, two causal factors may be in play— both the individual's sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn't care. If an employer would not have discharged an employee but for that individual's sex, the statute's causation standard is met…

As a Boston Red Sox fan, I am happy to learn that it is still legal for employers to fire Yankees fans, so long as they do so on a sex-neutral basis!

On a more serious note, Gorsuch is right that "discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second." The two are, as he puts it, "inextricably connected."

I cannot resist noting that  Prof. Andrew Koppelman (Northwestern) and I made much the same argument in an amicus brief we authored in Obergefell v. Hodges (2015), the same-sex marriage case in 2015 (which is not to say that Gorsuch got the idea from us). As we summarized it in an op ed in USA Today: "If same-sex marriage is forbidden, Anne is allowed to marry Bob, but Charles can't. Charles is denied the right to marry Bob, solely because Charles is a man. Denial of a legal right solely because of gender is the very essence of sex discrimination." Similarly, in the Title VII context, if Anne can date Bob without any retaliation from her employer, but Charles gets fired or demoted for doing the exact same thing solely because he is a man, then Charles is being treated differently from Anne based on sex, and is thereby a victim of sex discrimination.

If the text of Title VII forbids all employment discrimination "because of…sex," it unavoidably forbids discrimination based on sexual orientation. In much the same way, Title VII's ban on racial discrimination has long been understood to ban discrimination against people who engage in interracial sexual relationships.

In his dissent, Justice Alito takes issue with these conclusions by arguing that a policy that discriminates against gays and lesbians actually treats both sexes equally, and therefore doesn't discriminate against either men or women. As he puts it, "[i]n cases involving discrimination based on sexual orientation or gender identity, the grounds for the em­ployer's decision—that individuals should be sexually at­tracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women."

The problem with this argument is that the same logic would also require us to conclude that discrimination against people in interracial relationships doesn't qualify as race discrimination; the same would go for discrimination against "transracial" people who refuse to identify with "their" racial group. We can easily reword Alito's argument to apply to that situation:

In cases involving discrimination based on participation in interracial relationships or racial identity, the grounds for the em­ployer's decision—that individuals should be sexually at­tracted only to persons of the same race or should identify with their biological race—apply equally to whites and blacks [and members of all other racial groups]."

These kinds of arguments were in fact made in the racial context, and were decisively rejected by courts long ago.

Justice Alito tries to sidestep the race analogy by noting that "[d]iscrimination because of sexual orientation is different [from race discrimination]. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination be­cause of sexual orientation is not historically tied to a pro­ject that aims to subjugate either men or women." By contrast, bans on interracial marriage were historically adopted in large part to "subjugate" blacks to whites.

But courts have never held that either race discrimination or sex discrimination require the presence of a desire to "subjugate" a group, or even hostility towards it. To the contrary, even well-intentioned differential treatment based on race and sex still qualifies as discrimination, and has been held to be such by courts. Alito and other conservative judges have long emphasized that point in the context of affirmative action programs, where they have (rightly, in my view) voted to strike down racial preferences favoring African-Americans and Hispanics, despite the fact that these programs were not enacted for the purpose of "subjugating" whites, or based on a belief that whites are somehow an inferior race.

Moreover, as Koppelman and I explained in our article on the same-sex marriage case, homophobia and sexism are not so easily separated. Historically, the two were closely linked:

[H]ostility to gays and lesbians and sexism are often closely linked. At least until recently, most Americans learned no later than high school that one of the nastier social sanctions one will suffer for deviating from traditional gender roles is the imputation of homosexuality. Much anti-homosexual prejudice is closely linked to gays' and lesbians' supposed deviation from conventional gender norms. While gay men are often stigmatized for being "effeminate," lesbians are stereotyped as too masculine.

Not all opposition to same-sex marriage is rooted in sexism. But such factors are prominent enough that the gender discrimination rationale for striking down laws banning gay marriage cannot be dismissed as mere legal formalism.

Gorsuch makes a similar point in his majority opinion, when he notes that "[A]n employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it." Enforcing gender norms on both sexes qualifies as sex discrimination, even if it applies to both equally, and even if there is no desire to "subjugate" one sex to the other.

While Gorsuch's logic is extremely strong from a textualist perspective, the court's decision is more questionable from a purposivist viewpoint. The latter  focuses on what the law in question was intended to achieve. Here, it is clear that the main purpose of Title VII was to alleviate discrimination against blacks and other racial and ethnic minorities. Liberal Supreme Court justices have emphasized the centrality of that purpose in decisions like United Steelworkers v. Weber (1979), where the Court ruled that Title VII doesn't ban affirmative action preferences for minorities, because such preferences serve the larger purpose of the law even if they seem to conflict with its text.

Banning sex discrimination against women was a secondary purpose of Title VII—a provision originally added as a "poison pill" by opponents of the law, who hoped that including it might scuttle it. And very few, if any, commentators in 1964 thought that the law would ban discrimination against gays and lesbians, or wanted such an outcome.

Of course, it is possible to argue that the purpose of Title VII should be viewed more broadly than it was in 1964 and that modern understandings of the law's purpose should be privileged over those of earlier eras. Judge Richard Posner of the Seventh Circuit made an argument along those lines in a 2017 concurring opinion addressing the very same issue as the one the Supreme Court decided today.  But, at the very least, the purposivist case for today's Supreme Court decision is weaker than the textualist one.

As a general rule, I lean far more towards textualism than purposivism, though I am not as hard-core a textualist as some conservative judges are. Thus, I think today's Supreme Court ruling is correct.

My only possible hesitation has to do with the issue of respect for precedent. The Supreme Court has a longstanding strong presumption against reversing its own statutory precedents. They are considered different from constitutional precedents because the former can be reversed by Congress, while the latter can only be changed by the Court itself or by a constitutional amendment.

The issue in this case had never previously been addressed by the Supreme Court. But there was a long history of lower federal court decisions and executive branch policies rejecting the argument that Title VII bans sexual orientation discrimination. Only in very recent years have some lower courts ruled the other way. I am not sure to what extent the Supreme Court should hesitate to overrule longstanding lower-court statutory precedents, as opposed to its own. That was the main reason I did not join any amicus briefs in this case, or write one myself (as I did in Obergefell, a constitutional case).

I also have some reservations about the policy result of this case. While I abhor homophobia, I also believe the government should only restrict private freedom of association in extreme cases, such as when the discrimination in question is part of a government-enforced system of repression, often backed by government-tolerated private violence, as was the case with racial discrimination in much of the country in 1964. Private discrimination might also be justifiably be banned in a situation where the private firm in question has a monopoly over some vital resource, or if in the absence of such a ban, the group in question cannot meaningfully participate in our economy and society. Although homophobia has by no means disappeared, I am not convinced that any of these extreme scenarios apply to employment discrimination against gays, lesbians, and transsexuals today, at least not in most of the country.

That said, this ruling —like Obergefell—is an important historical milestone showing how far gays and lesbians have come since the days when homophobia was ubiquitous, and they were routinely persecuted by government at all levels. On that point, it's hard to disagree with this passage in Justice Brett Kavanaugh's dissent:

[I]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result.

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  1. Even as a textual matter, I’d think that if your local ice cream shop declined to put a man in makeup and heels behind the counter, it wasn’t “because of” his sex. Surely not, according to the text interpreted by its original public meaning. True, his sex was a “but-for” reason. But it wasn’t the proximate reason.

    1. Justice Gorsuch addressed that issue. Congress could easily have added “solely” before “because of” and made the conscious decision not to. The drafters realized that adverse employment decisions are rarely because of a single issue and if any other instance could cut off liability it would undermine the statute. Imagine a person obviously subjected to discrimination being unable to pursue a claim because one time, years ago, he showed up 5 minutes late to work.

      1. That doesn’t seem to help. A proximate reason is not a “sole” reason. Of course, “solely” would be a ridiculous way to draft a statute attempting to prohibit sex discrimination, for the reasons you point out.

        1. just switch “solely” for “primarily”. Either way, Congress didn’t say that, and the law is what Congress actually passed and the President signed, not what the should have written.

      2. Similarly, Congress could easily have preceded each clause of the law with, “Simon says,”, but we don’t draw any conclusion from their failure to do so.

    2. Really? it wasn’t?

      What’s different about that case than the case where a business says “We are just as willing to hire women as secretaries as we are men as lumberjacks but we only hire individuals for jobs when their sex matches the social expectation of the sex for that job?”

      Or what if they modified it a bit and said, “Look, we aren’t willing to employ women who wear masculine clothes and it’s unsafe to wear a dress as a lumberjack.” If the law allows you to refuse to employ people who don’t wear sex appropriate (i.e. stereotypical) clothes that’s a trivial backdoor to return all the sex discrimination you want (labcoats aren’t female sex-appropriate etc..)

    3. I mean I see the argument (the proximate reason was the failure to comply with sex stereotypes) but the court already (and convincingly) rejected that in the race case. You can’t backdoor your way into discrimination just by pointing to the inclination of others to discriminate and that’s the real reason you won’t hire the man in the dress (if you directly cared that he didn’t comply with the male stereotype sex would be a proximate cause so the only escape hatch left is to claim you can discriminate if your reason is to satisfy a public desire for discrimination).

      Note here discrimination just means the kind of behavior that would be outlawed by the statute if directly engaged in by the employer.

    4. I know you’re big on the proximate cause adoption, but I think it’s got its own issues. First, proximate cause means different things to different people. Some jurisdictions use bright-line duty to define proximate cause. Some hitch it to foreseeability. Some hybrid. I can sympathize with any judge who doesn’t want to adopt a vague legal standard to govern the affairs of hundreds of millions of people.

      Now I might be misunderstanding what you’re trying to say. Maybe “proximate reason” is different from “proximate cause”. Could you confirm the distinction, and expand on what you mean by “proximate reason”?

      My understanding of proximate cause in the jurisdiction I work in, is that’s it’s nothing more than a judge’s way of dressing up his results-based decision in a veneer of objectivity. Put differently it’s just a way for a judge to say, at the end of the case, that even though there’s no question that the defendant’s conduct was a but-for cause of the plaintiff’s injury, there are policy reasons (decided by the judge) to not extend liability. If that’s what you had in mind, Gorsuch’s decision already includes proximate cause, since he wrote the majority. (We can presume the majority believes that proximate cause exists.) Put differently, even if the legislature had expressly said “proximate cause” in the statute, they’d still be deferring to the judgment of the nine.

      1. I say “reason” instead of cause, because proximate and but-for/actual causation were really creatures of tort law. From law school memory, you need to show that a negligent action was not only the but-for cause of injury, but also the proximate cause. If you leave a broken glass on the ground, it would be the but-for and proximate cause of someone cutting themselves on it (it’s foreseeable). It would also be the but-for cause a building burning down due to sunlight somehow refracting through the glass onto a pile of dry tinder. But it may not be the proximate cause of the building burning down (not foreseeable). In addition, there can be a “superseding cause” which breaks the causal chain and therefore renders proximate cause not present. Someone left a pile of kerosene-soaked tinder sitting around.

        The concepts are not exactly the same as what we are talking about, but maybe it maps onto it. In a discrimination claim there will be an issue of damages and to what extent those were caused by the unlawful discrimination. What we are talking about is not the causation of damages, but whether there was unlawful discrimination to begin with. That depends on what the “reason” was for the action.

        In order to assess whether there was an unlawful reason, courts have understandably looked at whether the act would have been taken “but for” the characteristic of race or sex. The idea seems to map onto this analysis. What we have here is perhaps a possible “superseding reason.” Plaintiff was not hired to work the ice cream counter because they thought a middle aged man in heels is weird. Muslim barber shop disagrees with outspoken plaintiff’s behaviors and moral beliefs and doesn’t want to work with them. Each defendant has no problem hiring people of any sex. Sex was a but for reason, but not a proximate reason.

        1. “…it would be the but-for and proximate cause of someone cutting themselves on it (it’s foreseeable).”

          I think you’re mixed up. Most proximate cause analysis cares about foreseeability. But-for causation doesn’t. You can have unforeseeable and unforeseen but-for causation. Palsgraf involved a but-for cause that was not necessarily foreseeable from the defendant’s perspective.

          Your argument about superseding cause makes sense, but that runs right into what I was saying. Superseding cause is just a fancy way for a judge to say “I don’t think this defendant should be liable to that plaintiff.” It’s a policy decision. If the legislature had written in “proximate reason” into the statute, the result would be the same; Gorsuch gets to decide whether the cause is sufficiently related. “Proximate” is a fancy way of saying “whatever the judge thinks policy requires”.

          1. “I think you’re mixed up. Most proximate cause analysis cares about foreseeability. But-for causation doesn’t. You can have unforeseeable and unforeseen but-for causation.”

            I know. That was precisely my point in the part that you quoted – you have but-for AND also, since it’s foreseeable, you have proximate cause.

            I don’t see the idea of a superseding cause that way. It seems very logical in my example. It’s just a subcategory of things that are unforeseeable, or a potential reason why a particular event was unforeseeable. I’m sure there are judges that employ it as you mention, though.

  2. “The problem with this argument is that the same logic would also require us to conclude that discrimination against people in interracial relationships doesn’t qualify as race discrimination”

    Under Title VII. And why would that be a problem? When Congress passed Title VII of the 1964 Civil Rights Act, it was still constitutional for states to have anti-miscegenation laws. What evidence is there that Title VII reached discrimination against interracial couples until lawyers got involved.

    And the reason the anti-miscegenation laws were struck down was because they were not, in fact, neutral but were meant to prevent the mixing of the superior white race with the inferior black race. There’s no such secondary motivation here. The employers aren’t trying to hide their prejudice against men by targeting gays.

    1. Good question. Loving was based on the 14th amendment, not the CRA.

  3. Is United Steelworkers still good law? If so, is there any issue with interpreting one part of a statute in a purposivist manner and another part textualist?

  4. I think it’s funny to observe that the liberals voted for the ends rather than the means.

    Gorsuch provided a simple, consistent rationale for his interpretation of the law. And I think his logic is compelling from a standpoint of what’s “right” as well.

    What’s interesting about the dissent, is that it arguably provides a simpler mechanism for congress to clarify the law. Congress can simply add “sexual orientation” to the list.

    It’s not as obvious how congress could overturn the Gorsuch opinion without completely removing sex from the equation.

    That said, I am not convinced a business doesn’t have a stake in whether their customer-facing employees conform to local social norms. Can they fire a transvestite because they receive complaints from customers that they don’t receive about their female employees?

    1. Don’t confuse the issue. Take your statement:

      That said, I am not convinced a business doesn’t have a stake in whether their customer-facing employees conform to local social norms. Can they fire a transvestite because they receive complaints from customers that they don’t receive about their female employees?

      Replace the word transvestite with black, and the word female with white. What’s your answer then?

      1. The answer is thou shalt not honor the false god of anti-racism.

      2. Do that. I actually curious what the answer to that is. Does it violate Title VII if a business fires someone because the customers are racist and would not shop in the store if they are served by the wrong race? Do we say the store is acting only because of the customers wants, not because of race, or do we say the store is acting because of race, even though the store itself does not care about race? I’m sure this issue must have been addressed at some point.

      3. It’s a close question. I think most defendants would lose if they refused to hire black people because their customers hated blacks. But, strictly speaking, you’re allowed to discriminate on the basis of something you’re not otherwise allowed to discriminate if there is a bona fide occupational qualification (BOFQ) for the selection, under 42 USC 2000e-2(e).

        If you are hiring models for Ebony magazine, and you wanted to do a photo shoot themed on powerful black women, you’d have to discriminate against (a) men and (b) white people in hiring, in order for the product to make sense. Hooters still insists that its Hooters’ Girls must be women. If you sell all-male gay porn, discriminating against women is a BOFQ.

        I think it’s possible that a jury, and even a court, would agree with a business owner as to why they fired a transvestite. (And transvestites are not necessarily the same thing as transgender people.)

        1. Just a long day. BFOQ. I’m struggling.

        2. “Hooters still insists that its Hooters’ Girls must be women.”

          But when they get sued over it, they settle.

          1. In the settlement, Hooters agreed to create other support jobs, bartenders, hosts, etc., filled without regard to gender. The Hooters Girls remain women, and Hooters only hires women to fill those positions. I’m not aware of any case ruling against Hooters on its BFOQ defense of its Hooters Girls women-only staffing.

            1. That was the 1997 settlement. They were sued again in 2009 and settled again.

              1. Of course, but they didn’t start hiring men for Hooters Girls. It was a confidential settlement, I’m sure they threw him a few thousand bucks to go away. None of which changes that Hooters’ official position is that Hooters Girls must be women for a BFOQ. (And technically Hooters didn’t settle with the plaintiff in 2009; it was a franchisee that did.)

    2. It’s not as obvious how congress could overturn the Gorsuch opinion without completely removing sex from the equation.

      Hmm? Congress just adds, “(except on the basis of sexual orientation)” after “sex”.

    3. Watch this: nothing in this statute should be construed to bar employers from making employment decisions based on an individual’s sexual orientation or (non-job essential?) compliance with sex specific stereotypes.

      But ultimately the reason it’s hard is that there simply isn’t a principled way to distinguish the case of the business that says “we won’t hire women lumberjacks because we only hire workers who dress in sex-appropriate outfits and it would be unsafe to let lumberjacks wear dresses” and the business that says “We won’t hire are man who wears a dress to work but we will hire a woman who does so.”

      That’s the fault of reality not the court.

    4. What happens when they find their transvestite employee dead in the dumpster? That’s where this is going….

      1. All-talk bigots are my favorite Volokh Conspiracy fans.

        Well, all-talk bigots and Ted Cruz, who today showed the same conservative courage, when defending his ‘stand for the anthem’ authoritarianism, that he exhibited when defending his wife against Donald Trump’s repeated insults.

        Ted responded to some take-a-knee tweets from actor Ron Perlman by challenging Perlman to a wrestling match . . . only not with Ted, but with Jim Jordan.

        Turns out Ted stands up for the anthem and for conservative values the same way he stands up for Heidi . . . another all-talk, hide-behind-someone’s-skirts pussy.

      2. Leave it up, let people see.

    5. “Congress can simply […]”

      Assuming Congress can do ANYTHING, which is an unsafe assumption so long as one-half of it is committed to doing nothing of any kind, as is the present case.

      Coulda, shoulda, woulda.
      Then again, the prospect for a Civil Rights Act of 2021 seem rather good, at present.

  5. The point Prof. Somin makes in transposing Alito’s argument from sexual references to racial references is a very good one. And we could extend it to some questions of political correctness. Suppose we have a ‘black’ professor who reads MLK’s Letter from the Birmingham Jail, and reads it as written, including the “N-word”. And suppose we have a ‘white’ professor who does the same. And the institution disciplines the latter, while tolerating the former, whatever the stated rationale. That is clearly discrimination based on race. Gorsuch (along with Roberts) has put down a marker. Discrimination (at least based on Title VII here) depends on categories as applied to individuals, not to individuals vis-a-vis relationships.

  6. I don’t think the defense of this ruling on textual grounds is as solid as you’re making it out to be. “Sex” simply did NOT mean “gender” when this law was adopted. Heterosexual women, lesbians, women who’d undergone disfiguring surgery and hormone therapy, they were all just “women”. Likewise heterosexual men, gays, and men who’d had their junk cut off were still all “men”.

    The idea that such surgery actually changes your sex is very recent.

    So, if heterosexuals, homosexuals, and surgically mutilated or delusional people were treated differently, they weren’t being treated differently on the basis of their “sex”.

    It’s no fair from a textual basis using linguistic evolution as an excuse to change the meaning of a law.

    1. Well, isn’t that the difference between Textualism and Originalism? If a word’s definition has changed (which is obvious question-begging here), then a Textualist perspective necessarily brings in the new “understanding”, so long as the verbiage is clear. That’s the risk.

      1. No, exactly no. Textualism uses the meaning words had, and the gramatical rules prevailing, at the time the law was written.

        Originalism moves beyond the dictionary to make other inquiries about what was going on at the time. But they are both dedicated to the idea of fixity, that the meaning of the law is established at the time it is written and/or adopted, not changing until amended.

        1. The whole point of Karlan’s argument and Gorsuch’s decision is that it is not necessary to find a new meaning for the word “sex” that didn’t exist in 1964. The argument is not that “sex” now means sexual orientation, but that you cannot discriminate on the basis of sexual orientation without discriminating on the basis of gender. It is a matter of unintended consequences, not a matter of changed meanings of words.

        2. ” Textualism uses the meaning words had, and the gramatical rules prevailing, at the time the law was written.”

          Right, except that’s not at all what the word means. Either way, it puts the onus on the author of the text to choose words V-E-R-Y carefully, because the words are the only things that can be considered. If you pick words that change in meaning, then you need to amend the text to reflect the original intent, assuming that’s the effect you desire. Failure to amend text that is changing in meaning is endorsement of the changing meaning.

    2. If one who fucks men is discriminated against because he is expected to fuck women (because he is a man) why is that not discrimination based on sex? If women are fucking men they would never receive such discrimination.

      1. Please mind your language, Blargrifth. I’d hate to see you get banned or censored. Prof. Volokh enforces civility standards . . . at least, he says he does.

        Sometimes.

        1. Of course it was meant to be the word as an action rather than the word as a curse. But good call, thanks.

      2. Because “sex” is plumbing, not what you do with it.

        1. Based on that logic it would not discriminate to fire a women for being pregnant. So I searched and found the Pregnancy Discrimination Act of 1978, passed in response to court cases deciding that pregnancy was not covered by Title VII. There appears to be precedent to your argument. I wonder if it was addressed by the present case.

          1. There was plenty of precedent overturned by Bostock, an issue specifically brought up by Prof. Somin in the OP.

    3. Huh? Actually, the ruling only protects gender identity *because* it doesn’t recognize them as legally relevant. As far as the court is concerned a trans-man is just a woman who adopts a bunch of behaviors usually reserved for men (calling themselves male, using male restrooms etc.. etc..).

      The reasoning is that what the law bans is discrimination based on compliance with sex-specific stereotypes. The law must do so or it wouldn’t stop a company from refusing to hire female lumberjacks.

      The ruling doesn’t accept any claims about gender identity or the ability to change one’s gender. It merely notes that firing people who are trans-men but not men is an instance of firing women for engaging in behavior they wouldn’t fire a man for doing the same thing. Indeed, if the court had recognized a more modern conception of gender it’s not clear if they could have supported this result (if a trans-man isn’t legally a woman then the company which fires a trans man but not a cis-man isn’t actually treating individuals differently on account of their gender).

    4. Even if one were to accept your premise arguendo, it still falls because discrimination on the basis of failing to conform with gender stereotypes is still prohibited under the statute. A man who is fired because he no longer has a penis isn’t any different than a woman fired for wearing pants according to the statute. So, even if you assume that a transwoman is still a man, it’s still discrimination on the basis of sex to fire them.

    5. Gorsuch’s ruling doesn’t rely on treating ‘sex’ as ‘gender’. I can’t believe you’ve read either Gorsuch’s argument or even any summary (including this blog post) if you’re making such a claim.

      It treats sex as actual biological sex. If you fire a man for dating men, but wouldn’t fire a woman for dating men, you’re discriminating on the basis of biological sex, with no need to invoke gender or sexual orientation, because the same conduct receives different outcomes based solely on the biological sex of the person.

      1. “It treats sex as actual biological sex.”
        The challenge to this argument is that there are people who are neither male nor female. The technical term for this is “intersex”. So if a law assumes that all people are either inherently male OR inherently female must fail.. Yes, technologically-advanced human society has muddied up that water by adding “people who were born with organs of one sex but no longer possess them” of various flavors, but attempting to permanently assign people to one sex or the other when some are neither is nothing more than foolishness.

  7. Prof. Somin does not grapple with the real basis of Alito’s dissent, which points out the weakness of the majority opinion: “sex” is not the same as “sexual orientation.” Sex just means what plumbing equipment you have, not who you enjoy bedroom antics with. I agree that leaves the status of transsexuals a little gray, but a legitimate textual reading does not support the majority at least on the issue of discrimination against gays.

    Not to say, of course, whether from a policy standpoint the decision is good for the nation.

    1. From a policy standpoint, I’d say it’s bad policy for the judiciary to be usurping legislative choices, even if the judiciary makes good choices.

      1. From a political standpoint it is good politics for Republican justices to take these hot button issues that energize Democrats off the table. Trump wouldn’t have won if Hillary had same sex marriage to run on.

        1. No, it actually demoralizes Republican voters when they go to the trouble of electing Republicans, and get Democratic policies foisted on them for their trouble.

          1. Republicans are reliable voters whereas Democrats need to be energized. So after Windsor and Obergfell Republicans had a good 2014 and 2016 because Democrats weren’t energized because Justice Kennedy took their best issue off the table.

          2. ” it actually demoralizes Republican voters when they go to the trouble of electing Republicans, and get Democratic policies foisted on them for their trouble.”

            Boo hoo. The hypothetical presupposes the judicial rulings as “good”. If all the “good” decisions are “Democratic” ones, then the Republicans have only themselves to blame for staking out all the “bad” decisions as their preferred policies.

        2. I agree. The same applies to abortion re: democrats. Republicans have been funding, energizing, and running on the issue for decades. Democrats can take it for granted.

          I think there’s another problem with SCOTUS deciding these issues, in that it actually pushes our leaders (politicians) further from the political middle. Suppose you’re a Republican who doesn’t hate the gays but you operate in a jurisdiction where there’s always a risk of getting primaried for being insufficiently mean to the gays. If your words or rhetoric had the force of law, you might not be able to look in the mirror if you passed an anti-gay marriage law or said anti-gay marriage stuff. But then SCOTUS comes by and saves you. Now you can say “I happen to think marriage should be between a man and a woman and that it should be left to the states” signaling to your gay-hating constituents that you’re a fellow traveler. But you don’t have to confront your conscience, because privately you tell your friends it’s just an act, SCOTUS took over, what difference does it make?

          Same thing for Democrats. A lot of them probably don’t have strong feelings on guns, but it’s easier to dodge a primary by professing your hatred of all handguns, knowing that SCOTUS saved you from having to ban handguns.

    2. Yes. A company is not discriminating against a lesbian women by firing her because she’s a woman; they’re discriminating against her because of her behavior or sexual orientation. You cannot separate or remove the behavior and just look at the sex and conclude it’s a violation of Title VII.
      To state it otherwise: the *motivation* for firing her (or a gay man) is not her or his sex – they don’t think her sex makes her a bad person or a bad employee or an unqualified worker – but her orientation. They don’t care diddly about the sex; they care only about the sexual orientation.
      Shorter: why is a gay man or lesbian women being fired? The motivation to do so has nothing to do with their sex but for another reason (a bad one to be sure). No business is saying that the sex disqualifies her for the job.
      Gorsuch’s reasoning here is too clever by half. He’s looking to include gays and lesbians in this protection. Rightly so they SHOULD be protected but this law simply does not do it.

      1. That just doesn’t work because there is no additional thing ‘orientation’ over and above the individual’s behavior.

        I can’t get away with refusing to hire female lumberjacks by saying I care about a worker’s WorkOrientation where a worker’s WorkOrientation is defined to be either straight or switch. A worker who is disposed to do jobs which are generally done by individuals of their sex has WorkOrientation straight (i.e. a man who is disposed to be a lumberjack or woman disposed to be a secretary). A worker disposed to do jobs which are generally done by individuals of the opposite sex has WorkOrientation switch.

        So can I now refuse to hire female lumberjacks on the grounds that I don’t care about their sex I only care about their WorkOrientation (I discriminate against people with switch WorkOrientation).

        It doesn’t work. Sexual orientation is just a label for being disposed to engage in sex-atypical sexual relationships. So either the whole laws falls apart because you can use WorkOrientation like properties or it has to ban requiring someone to have sex-typical dating patterns as well.

        1. Sexual orientation is just a label for being disposed to engage in sex-atypical sexual relationships.

          Even when I’m not having sex – I’m still gay. And one of the plaintiffs was literally fired because he joined a gay softball team. Not because he was engaging in “sex-atypical” sexual relationships.

      2. “To state it otherwise: the *motivation* for firing her (or a gay man) is not her or his sex – they don’t think her sex makes her a bad person or a bad employee or an unqualified worker – but her orientation. They don’t care diddly about the sex; they care only about the sexual orientation.”

        So company A fires Julie for dating Sally. That’s discrimination based on sex because if Julie were Joey, they’d have no objection to his dating Sally. The objection is to the sexual orientation, which contains sex as an essential component.

  8. Let’s say you decline to hire someone because they are a member of NAMBLA. Assume a necessary condition of such affiliation is that they are a man. Is this discrimination “because of” sex?

    1. Substitute the KKK and being white, and some black fringe association identification, etc. None of this is on a moral plane with being gay, to be clear.

      1. I don’t see any Title VII issue here because you would be treating men and women who engage in the same activity (membership in an organization) the same. These cases involve differential treatment for the same activity (sleeping with men).

        1. The activity is not the same. In this hypothetical assume that the race or sex is a necessary condition of the affiliation. In the same way that being or having been a biological man is a necessary condition of being a transgender woman.

          1. Yes, but you aren’t actually firing them specifically for membership in NAMBLA you are firing them for membership in any organization which advocates sexual relationships between adults and children. The fact that NAMBLA is the only common instance doesn’t change that analysis.

            I mean it’s the same as if you refused to hire a man who had committed rape. True, there may be a subpart of the definition of rape which is only applicable to individuals with a penis but you aren’t specifically refusing to hire someone because they violated subpart blah of statute such and such but because they committed rape.

          2. ” In the same way that being or having been a biological man is a necessary condition of being a transgender woman.”

            So by this you mean “not”? Because a transgender woman has not necessarily ever been a “biological man”? The only thing you can say with certainty about a transgender woman is that she hasn’t always been equipped with exclusively female reproductive gear.

    2. NAMBLA could just hold themselves out as a religious organization and seek the same result. Here is the reality—the underlying rationale of Obergefell clearly protects polygamy the same way it protects gay marriage…except Kennedy made a point to trash polygamy because he doesn’t approve of it and neither did the other 8 justices. So the slippery slope argument doesn’t work with the Supreme Court because they aren’t bound by stare decisis. So these 9 people don’t believe they are in a suicide pact bound by Justice Taney opinions or even Justice Renquist opinions.

  9. We now have the Supreme Court dynamically interpreting statutes. It no longer matters what Congress puts in the law; what matters is what meaning the Court can torture out of the words used.

    1. Why do I suspect that you only have a problem with that when you disagree with the result?

      1. Sounds like a concession to me.

  10. In any case, this is some pretty radical textualism. It will be interesting to see where Gorsuch takes this in future years.

  11. I really wish Obergefell had used this same sex-discrimination logic. As written, Obergefell implies that marriage is so extraordinarily special that, even though it isn’t mentioned in the constitution, government has the positive duty to marry you. It can choose not to build roads, not to provide police protection, but by God it absolutely must issue marriage licenses. All this so that Kennedy could get his cover of the equally woolly thinking in Loving.

    1. The thing is that, as a matter of policy, the government does not create marriages, it merely recognizes where they exist, and grants some legal statuses based on that recognition. Because it grants legal statuses, the Constitution requires that these statuses be granted on an equal basis to everybody who asks for them.

  12. Professor Somin, respectfully, I think you are very wrong on this one.

    The controlling law for the government (in regards to discrimination) is the 14th amendment of the Constitution. The 14th amendment never mentions sex, or race, or anything else.

    Rather, it sets out to forbid the government from abridging the privileges and immunities of the citizens, denying them due process or denying them the equal protection of the laws.

    Thus, when it comes to marriage, one needn’t wonder whether or not banning interracial marriage or is “race neutral” or whether banning gay marriage is “sex neutral”. The line of inquiry (in my view) ought to be whether or not you have a right to marriage, and whether or not the law infringes upon it. If Kathy is a white female, I have a right to marry her, regardless of whether I am black or a woman.

    In other cases, you don’t necessarily have to have a right in order to have a claim against the government. Every law discriminates against someone: laws against murder discriminate against murderers and taxes discriminate against taxpayers. The question (as far as the equal protections clause and due process clause are concerned) is whether the law discriminates against you because of “suspect classification”, which recognizes the truth that some laws serve no purpose other than to discriminate against groups and are not legitimate. The fact that the supreme court has recognized race, sex, etc. as suspect classifications does not mean that the government may discriminate against any group that has not yet been added to the list. It seems quite evident that sexual orientation and gender identity will soon be added, as they should. Regardless, holding that discrimination based on sex is not the same as discrimination based on sexual identity does not mean that the government is free to discriminate against gay people: just as the 14th amendment does not name race or sex, it doesn’t have to name sexual orientation.

    (These two principles often work in combination, and are subject to exceptions based on different levels of scrutiny, but that is besides the point.)

    Now the question (as a textualist matter) becomes whether or not discrimination based on sexual orientation or gender identity, for the purposes of the civil rights act of 1964 and subsequent amendments, necessarily entails discrimination based on sex. If one holds that it does, because you can ask a but for question that involves their sex (i.e. we would have hired Sarah, even if she was sexually attracted to Kathy, but for the fact that Sarah is a woman) then you will inevitably create a whole host of issues. One is the following proposition: we wouldn’t have fired John, even though he used a racial slur offensive to Asian people, but for the fact that John was white. Under a reasonable system of interpretation the employer in this case did not discriminate against their employee based on race, but based on the fact they used racially inflammatory language, which is in part determined by the race of the speaker. Under Gorsuch’s formulation, this would amount to racial discrimination under the civil rights act. Alternatively, imagine even a tolerant employer who allows employees to use the bathroom that aligns with their gender identity rather than their biological sex. If a person walked into a female bathroom, a relevant question as to whether or not they have a perverted motive might be whether or not they identified as a man. Not so, according to Gorsuch. “They wouldn’t have been fired, even though they used the female bathroom, but for the fact they were a biological male.”

    The (textualist) question ought not to be whether one can demonstrate a but for causation that implicates sex or race, but whether a reasonable person (and, under Gorsuch’s originalism, at the time of the framing of the law) would ask the question in a way that demonstrates a but for causation.

    Personally, I find there to be no philosophical difference between discrimination based on sex and discrimination based on sexual orientation. Both are immoral. But I find it hard to believe that I share that view with the reasonable public of 1964 (or 1991). Martin Luther King, I was recently made aware, wrote an article urging a young boy to seek help to cure his homosexuality. It takes a perverse stretch of logic to put MLK and the civil rights act on opposite sides of history. Alito gives evidence supporting the prevalence of that view as well in his dissent.

    It might be true that no reasonable person could interpret refusing to hire employees in interracial marriages as anything other than discrimination based on sex. But there are plenty of conservative women who are opposed to transgender people having a different gender identity or homosexuality, and would ardently separate discrimination under those criteria as different from discrimination based on sex.

    That I find their views deplorable is not a canon of statutory interpretation. If we accept that the law means what a reasonable person would hold it to mean, this decision (like many other activist decisions) requires half the country to plea insanity.

    1. “If Kathy is a white female, I have a right to marry her, regardless of whether I am black or a woman.”

      This ignores the elephant in the room, which is that “of the opposite sex” was actually part of what “marriage” meant, so that marrying somebody of the same sex was just a nonsense construction. Whereas marriage across races was quite ordinary, and practiced everywhere it wasn’t forbidden.

      You didn’t see laws prohibiting same sex marriage, the way you did laws prohibiting different race marriage, because it wasn’t even a consideration given what marriage meant. And not because they didn’t know of homosexuality.

      1. This is a fair point, I think the argument is about what constitutes marriage. Still separate from the civil rights context, but yes I concede that you would have to flesh out what marriage means as a right.

        1. Kennedy fleshed out what marriage means as a right in Obergefell.

          1. I would agree with his assessment as well

          2. Then cranked it up through the roof during a thunderstorm and cried, “Make my creation LIVE!”.

      2. Probably the easier way to think about this is what was mandated on that definition of marriage was for the government to stop providing marriages and create a new notion NewMarriages which doesn’t discriminate on gender. The fact that we choose to use the same sound/spelling for the new inclusive notion of marriage as the old one is irrelevant to the analysis.

        What matters is whether you have the right to enter into a government recognized relationship that grants you the same status relative to Kathy as someone who is of the other gender would have.

        I mean imagine instead of marriage we’d instead had the concept of Rmararriage which means marriage between individuals of the same race. Since that notion doesn’t apply to interracial marriages would that have meant the constitution didn’t ban laws against such marriages?

        No, because what the constitution bans is the differential treatment of individuals on account of their race. So if we’d been using the notion of Rmarriage what the constitution would requires is that the government stop offering Rmarriage and either get our of the business of binding couples together or create a new race neutral notion and offer that.

      3. “This ignores the elephant in the room, which is that “of the opposite sex” was actually part of what “marriage” meant”

        Nobody put it into the definition in the statute, so that isn’t what it meant.

    2. we wouldn’t have fired John, even though he used a racial slur offensive to Asian people, but for the fact that John was white.

      If you don’t similarly fire an Asian person for using the same slur, that sounds like discrimination because of race to me.

      They wouldn’t have been fired, even though they used the female bathroom, but for the fact they were a biological male.

      Forget about the transgender issue. Can a man be fired for using the woman’s restroom. Almost certainly yes, even though he was fired on the because of sex, there was no discrimination (as with Title IX, sex-segregated bathrooms aren’t discriminatory).

      1. My point is that under Gorsuch’s formulation, sex-segregated bathrooms are discriminatory, even if they are segregated by gender identity. He treats it as a common sense argument, when it really would undo a huge amount of precedent.

        As for the racial slur, race does seem to be a huge factor in how it is received. If you think the act ought to criminalize that, I suppose to each their own, but I don’t think that it was intended to and I don’t think it’s structure does.

        1. Gorsuch’s formulation only tells us that sex-segregated bathrooms do something because of sex. It does not tell us whether sex-segregated bathrooms discriminate (violate the law) or merely classify (do not violate the law) because of sex.

          1. His analysis of discrimination holds otherwise. To discriminate on account of sex means that there is some line of reasoning that holds you would have received some benefit, but for your sex. He extracts that meaning from the word “discriminate”, not “on account of sex”.

            1. As Gorusch said, specifically in reference to sex-segregated bathrooms:

              As used in Title VII, the term “‘discriminate against’” refers to “distinctions or differences in treatment that injure protected individuals.” Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.

              So, he is not saying that all classifications because of sex discriminate.

              1. Being fired discriminates against the firee.

                There’s a lot of fuss and uproar about menfolk being in the ladies’ loo, and most of it is profoundly stupid. Refine the facts a bit, and determine, to the best evidence can provide, wtf was he doing there? Are we talking about a grade-school prank, where the group of bullies physically forces the victim of the bullies into the “wrong” bathroom? A case where the mens’ facilities are non-functional or fully-occupied and the fellow, in desperate need of relief, has attempted to find out if the ladies’ is unoccupied? Or is it a case of a flasher looking for a horrified response to his exhibitionism or a voyeur coprophiliac looking for stimulation? If it’s the latter, well, peeping is criminalized no matter where the creeper is located when doing the peeping, so charge the poor sod with that. If the person is in a restroom to use it for its intended purpose, no harm, no foul.

      2. Let’s move away from race specifically and just ask consider insulting statements about numismatics. If I’m known in the office as a devoted numismatic and I say ‘numismatics are anal-retentive blowhards’ everyone will rightly understand me as making a self-deprecative remark whose intent isn’t to insult numismatics but to convey to others that I’m flawed and make me more approachable. On the other hand if I’m known as someone who isn’t a numismatic but John is and I utter the exact same statement the content of my utterance is actually quite different. Now it really is reasonable to infer that I’m making a negative and insulting claim about John and people like him.

        This is a reasonable interpretation of the rules about racial epithets by people of different races. It’s not good that our linguistic rules assign different meaning to the same words used depending on the utterers race but it is nevertheless true. Or to put it differently the meaning of an utterance containing the n-word as spoken by a black person may be genuinely different than that same utterance as spoken by a non-black person.

        (If you want to give a really strong example consider the statement:
        “The highest paid woman in this company is a slut.” Uttered by the male CEO it accuses someone else of being a slut but uttered by a female CEO it just says something about herself. Given we fire people for insulting others but not themselves even though we wouldn’t have fired the CEO if they’d said that and been female it’s not discriminatory just the way context determines meaning)

        As far as the bathrooms case I think firing someone for using them is a different matter than whether sex-segregation itself is discriminatory. What the person is being fired for is violating the company rules/signs indicating what bathroom they can use. Failing to follow the rules is arguably sex-neutral even if the rule itself distinguishes based on sex.

        This can get tricky but consider a case where each employee is given a desk for papers and it’s a violation of security (say it’s the CIA) to open up another employees desk. Now even if desks are assigned based on race (you get desk 1 if you are the most senior white employee, desk 2 if second most etc.. then most senior black employees) if the most senior black employee opens up desk 1 you probably still have a cause to fire them for peeking at another employees assigned documents even if the underlying desk assignment system is racist and illegal.

        1. You’ve made some good comments in this thread, but I think this one’s got some issues.

          1. In the first part, you are conflating insulting yourself with insulting others with whom you share a characteristic.
          Male VP accuses female VP of being a slut -> Not OK.
          Female VP calls herself a slut -> OK it’s just a tasteless joke.
          Female VP accuses another female VP of being a slut -> Not OK.

          2. In the second part, your bathroom argument is structurally equivalent to firing an employee for not obeying the sign above the water fountain that tells him which one to use. And we know that doesn’t fly. There’s no arguing around it: right now society tolerates (even approves) some distinctions based on sex, but almost never on race. But if judges are going to be textualists then sex and race often use similar text in discrimination law, and the cases can’t be distinguished.

    3. “If Kathy is a white female, I have a right to marry her, regardless of whether I am black or a woman.”

      Interesting. Does Kathy’s opinion weigh in this right, or is it absolute? I would like very much to be married to Kristen Bell, but the state of California recognizes her marriage to Dax in direct violation of my right to marry her, just because he got there first and possibly also because he went to the trouble of actually obtaining her consent.

  13. Does this decision destroy women’s sports? If not, why not? Suppose that there is a marathon and there is a class for women and a class for men. Suppose that there are XY men who would not win if they ran against other XY men so they enter the race in the womens class. What is to prevent that?

    1. Theres no reason anymore. We’ve moved from equality of opportunity to decreed equality of protected classes in all aspects regardless of reality. So there no legal rationale to deny XY males entry into women’s sports or for people to demand male insurance coverage for ovarian cancer. Not to say they won’t come up with some BS reason to save women’s sports.

      1. No reason to vote for Republicans. I’m going to stay home in November. Not worth risking COVID to stand in line and vote for Republicans, only to get liberalism from them.

        1. Souter’s Law: No matter how many ‘conservative’ Justices are appointed the Court always drifts left to at least a 5-4 split.

          1. Pretty much. It’d be one thing if we got this ridiculous decision in conjunction with a grant of cert on a 2nd Amendment case. But we get nothing. We get “libertarian” opinions when the “freedom” is something important to liberals, and we jack s*** on anything important to us.

            Screw it. No reason to vote. Let the Democrats take over and let this country burn. We’ll rebuild from the ground up.

            1. That kind of sums up my emotional state right now. A Court with, supposedly, a majority of conservatives, and they do THIS, and refuse to take any 2nd amendment cases, where an actual amendment in the Bill of Rights is being violated.

              Rat bastards, Thomas is the only one worth anything.

              I’ll vote anyway, because I’m 61, and I really don’t want to try to live through a civil war or flee the country at my age, but really: If this is what voting Republican gets us, what’s the point?

              1. Right. I understand to some degree, some levels of compromise to save face, but it seems like year after year, we get nothing, while the left’s agenda is either pushed forward at full speed or, at the very least, grudgingly supported.

                I’d rather just not vote. Between the political unrest and the Federal Reserve printing free money to give to the investor class, creating the worst moral hazard the country has ever seen and destroying capitalism, I’d rather let it burn. The civil war is coming either way, and I’d rather be here to help rebuild than leave it to my children.

                1. There’s nothing better on this blog than when two of you are egging each other on to greater heights of lunacy.

              2. ” If this is what voting Republican gets us, what’s the point?”

                It gets you incompetent leadership because that’s what the brand stands for. R’s love to run on the theme of how incompetently-run the federal government is, then sometimes they get elected and set out to prove it.

                Try demanding that the “leadership” actually work with the opposition, instead of demanding that they keep ideologically pure and refuse to listen to anything they have to say. The D’s managed to do this, so can you.

        2. “No reason to vote for Republicans.”

          You could have stopped there.

      2. Where do I buy male insurance coverage?

    2. Firstly, sex-segregated sports are the purview of Title IX of the Education Amendments, not Title VII of the Civil Rights Act. Secondly, Title IX has already been interpreted so that although sex-segregated sports classify because of sex, they do not discriminate because of sex.

      1. Sounds like gibberish semantics. You’d make a fine SC Justice.

        1. Why do you post on a legal blog?

      2. “Firstly, sex-segregated sports are the purview of Title IX of the Education Amendments, not Title VII of the Civil Rights Act.”

        No, sex-segregated sports in primary, secondary, and college are the purview of Title IX of the Education Amendments. Title IX does not cover professional sports. For example, the USWNT filed their sex discrimination lawsuit under Title VII.

        “Secondly, Title IX has already been interpreted so that although sex-segregated sports classify because of sex, they do not discriminate because of sex.”

        I’m not sure I see how that can still hold. If a man is prevented from playing on a women’s team, and a similarly situated woman would not be prevented, under the theory of this case how is that not discrimination based on sex? Arguing that men have men’s teams and women have women’s teams sounds a lot like the arguements that bans on interracial marriage aren’t based on race because they apply equally to whites and blacks.

        1. Thanks for the information on professional sports.

          This case only established what “because of sex” means, and indeed sex-segregated teams are “because if sex.” But, this case did not establish when an action “discriminates” (not legal) versus “classifies” (legal) because of sex.

          1. If you can’t fire someone because of their sex, how can you refuse to hire them because of their sex?

            1. Assuming that Bostock established a new rule that sex discrimination can occur even when males and females are treated comparably as groups, Bostock does not change the analysis of female-only sports when male sports accept females. That hypothetical clearly disfavors men as a group. And yet, I strongly suspect it is permissible as a bona fide occupational qualification. I would expect the same result for completely sex-segregated sports.

      3. “Firstly, sex-segregated sports are the purview of Title IX of the Education Amendments”

        Not true because college sports are not all sports. College sports are where most of the gains have been made by female athletes, because female athletes (not counting beach volleyball players) have trouble drawing paying audiences, severely limiting opportunity for female sports.

  14. TIL being disturbed by a person who takes a chainsaw to their genitals requires you to discriminate against one sex over another.

  15. Bad day for the bigots, who had become accustomed to being enabled by Republicans to rely on the ‘heads we win, tails you lose’ approach (we can discriminate against others, but no one can discriminate against us).

  16. I think your mistaken in your purposeivism critique.

    An obvious intended purpose of the law was to stop a business from saying “I’m equally willing to hire a man for a male stereotypical job and a woman for a female stereotypical job so I’m not discriminating”. As such a clear part of the purpose of the law passed was to ban businesses from treating women who act like their male counterparts but thereby fail to comply with sex stereotypes from discrimination. Dating a woman is such a behavior.

    I mean to put a really fine point on it imagine it’s a job as a gigilo/sex worker who serves female clients. Further, suppose the female clients are equally willing to accept a man as a woman so it’s not a BFOQ. I don’t see how you could deny that the purpose of the law includes stopping women from working in such a job like men just as it would bar stopping women from working as lumberjacks because that’s usually something only men do.

    Sure, that wasn’t *expected* by the legislators who voted on the bill but that’s replacing purpose with expected applications which is different.

  17. Scratch out the word “date” and write in the word “hire” in crayon.

    Does anything in the analysis change?

    Should the result be any different?

  18. Does Title VII make it illegal to discriminate against employees (or would-be employees) based on whether they lie about their national origin (or race, or sex, etc.)?

    Employee A is Chinese and claims to be Chinese. Employee B is not Chinese but claims to be Chinese. The difference between Employee A and Employee B is that one is Chinese and one is not. So can an employer fire one but not the other (because one lied and one didn’t), or is that national origin discrimination?

    1. No, but it also likely doesn’t make it illegal to discriminate against employees who lie about their sexual orientation, e.g., if you are the NSA you might not care what orientation an employee is but have good reason to believe one which lies about it is a security risk.

      It’s not that you get to pick any description of objectionable behavior and then ask if someone else who was a different sex/race/etc who fit that description wouldn’t be fired it’s discrimination. Trivial example: A company fires any male employee who grabs the closest female’s breasts without asking permission but doesn’t fire women who grab their own breasts without permission. Sure, they both made the statement: grabbed the nearest female’s breasts without permission true but that’s not what the analysis requires.

      What’s relevant to the analysis is that the law very clearly is intended to prohibit employers from discriminating against individuals based on their adherence to sex-specific stereotypes. If it didn’t then a company could just say “I’m only interested in hiring sex-stereotypical lumberjacks” and thus avoid hiring any female lumberjacks.

      So what makes discrimination based on sexual orientation illegal isn’t that you can just dumbly say but a woman who dated men wouldn’t be fired so it’s discrimination. It’s the fact that firing men who date men but not women is a form of firing people for non-compliance with sex-specific stereotypes which is part of what the law bars.

      1. “No, but it also likely doesn’t make it illegal to discriminate against employees who lie about their sexual orientation,”

        The problem here is that the law doesn’t have one word to say about “sexual orientation”, only “sex”, which is to say, plumbing. So the tranny absolutely IS lying about their “sex”.

      2. Peter Gerdes: “ So what makes discrimination based on sexual orientation illegal isn’t that you can just dumbly say but a woman who dated men wouldn’t be fired so it’s discrimination.”

        That is, in part, what the majority was saying. Discrimination based on sexual orientation is discrimination based on sex because you’re treating people who are attracted to a particular sex differently based on their own sex. A male attracted to males is treated different than a female attracted to males. That’s the aspect of the Court’s reasoning which I was alluding to.

        The Court: “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 male 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.”

        You could say the man and woman are different in that one is attracted to the same sex and one is attracted to the opposite sex, and the discrimination is based on that (not-prohibited) criteria. Or you could, as the Court sees it, say that they are the same in that they are both attracted to males, so the discrimination is based on their own sex and is thus prohibited.

        For my question, you could say that Employee B and Employee A are different in that one is lying and the other is not, and the discrimination is based on that (not-prohibited) criteria. Or you could say that they are the same in that they both claim to be Chinese, so the discrimination is based on their national origin.

    2. “Does Title VII make it illegal to discriminate against employees (or would-be employees) based on whether they lie about their national origin (or race, or sex, etc.)?”

      What’s your source for the knowledge that they lied? Are you trying to fire a Caucasian South African for claiming to be African-American?

  19. I wonder what this means for employers who make special accommodations for trannies. If trannies are allowed to use locker rooms reserved for the opposite sex, but normal people are not, is this forbidden by the 1964 Civil Rights Act per the Court’s interpretation in Bostock?

    1. Was anyone denied a job, compensation or any other employment benefit as a result of the accommodation?

      And, thanks for sharing with us that you are a bigoted prick.

      1. If the benefit in question is getting to use locker rooms reserved for the opposite sex, and trannies are provided this benefit, but normal people are not, then this is discrimination based upon transgender status.

        1. It’s highly unlikely which locker room you use is an employment benefit.

          1. I don’t think it is highly unlikely based on some of the locker rooms I’ve been in. I’d agree if they were equal but sometimes there are vast differences in what is offered in many cases. Of course the remedy is, perhaps, to make them equal–not to say anyone can use whichever one they want.

    2. You know what group wants to maintain the locker room status quo?? Gay men who are sexually attracted to other men!! Just loading up their spank tanks! Lololololol!!

      1. I cede to your obviously superior knowledge of how gay men think.

  20. Lewis Carroll on Textualism vs. Purposivism:

    “Words mean more than we mean to express when we use them, so a whole book ought to mean a great deal more than the writer meant.”

  21. On a more serious note, Gorsuch is right that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” The two are, as he puts it, “inextricably connected.”

    What? Stuff that was historically separated may later be connected—but not “inextricably,” connected. What was once separated cannot be forever inseparable.

    My point is not to protest the outcome of Bostock v. Clayton County. I endorse the outcome. But the, “textualist,” method, not so much.

    Textualism, not less than originalism, suffers as a method from inability to account for changed context. Understanding, very much including textual understanding, depends on context.

    If textualism means anything, it must mean that texts are comprehensible, and express the same meanings at every time. Dispute that, and you dispute that textualism is a valid method to constrain legal decision making. What the text means today cannot be different than what the text meant when it was written, even if it was written during some antique era.

    Allow textual meaning to change over time, and textualism founders on the same shoals which allegedly pose such peril to living constitutionalists. Future advocates will regard themselves free to make the text mean whatever they say it means. Future context will be the only boundary to constrain doing it.

    Today’s literal text may be transmitted into the future, down unpredictably lengthy intervals of time. Not so, today’s context. Future readers of today’s text will understand it not on the basis of its written meaning—which will be inaccessible to almost all of them—but instead on the basis of its then-contextual meaning.

    And where will that later context come from? It too will come from the unknowable future—specifically from occurrences which happen after the text was written. Those occurrences always happen in ways, and with effects, the writers of the text were powerless to imagine. Just as the text’s writers were also powerless to imagine which necessary-to-understanding time-of-writing contextual keys will disappear, during an intervening interval, and be utterly forgotten before the text is read.

    If they are changed by the passage of time, the meanings in text cannot be inherent. And they demonstrably are changed over time. The quoted text above examples it. The notion that, “textualism,” delivers a useful method to constrain legal decision making is a pipe dream.

    1. “Allow textual meaning to change over time, and textualism founders”

      Textualism doesn’t founder here. If you allow textual meaning to change, you’re not a textualist anymore.

      Originalism takes the position that, while the law does need to change occasionally, the way that’s accomplished is by actually changing the words. Formal amendment is the only amendment the judiciary should recognize.

      To do otherwise is to usurp the authority of those who are actually entitled to amend the law.

      1. Brett, try re-reading. Or maybe I should try re-writing.

        I thought I was saying that you don’t get a choice. For reasons no one has the power to affect, the meaning of a text, almost any text not trivial to interpret, is destined to change over time.

        If a text was written during the founding era, and you read it now, and insist you know the meaning, well, maybe you do. But your reading will be a modern meaning—a modern meaning inflected anywhere from slightly, to 180 degrees opposite (note that I do not say, “wrong”), by more than 2 centuries of changed context.

        The writers of your text were powerless to anticipate such changes, and did not try. Your meaning was not accommodated by them. Without resort to historical scholarship, you are powerless to know what their words intended in their different antique context.

        Without pickling yourself in original sources for years—which pretty much only historical scholars do—it will be impossible for you to say what that text meant when written, or at any point in the past prior to your own lived experience. And it will likely have meant different things at different times. Sometimes the differences will amount to nuance. Other times, less often, but still surprisingly commonly, the differences will be major, and might even amount to contradictions.

        I have a wonderful little book which addresses the different meanings of one particular phrase, “City on a hill,” at different times from 1630 until the present. Modern Americans know that phrase either from the Bible, or from the meaning President Reagan gave it—which was an exact opposite of the meaning intended by John Winthrop in his 1630 sermon, “A model of Christian charity.” While getting the historical meaning backward, Regan supposed he was quoting Winthrop, or at least invoking him. That sermon is a relatively well-known historical source despite the fact that few modern Americans—apparently including Reagan—ever read it. The book details various inflections from different uses of that phrase along the way from Winthrop to Reagan. Those changes are the entire subject of the book.

        1. “For reasons no one has the power to affect, the meaning of a text, almost any text not trivial to interpret, is destined to change over time.”

          The intended meaning of text never changes. We wouldn’t be able to have this conversation if that were true.

          1. The intended meaning of text never changes. We wouldn’t be able to have this conversation if that were true.

            The reason we have the first amendments to the Constitution was because those who originally were part of creating it and the people ratifying it did not agree on the intended meaning of the text.

            1. That people disagree about the intended meaning of text does not rob the original text of an intended meaning. One or the other group of people could have just been wrong in their interpretation of the original text.

            2. “The intended meaning of text never changes.”

              Assuming there was agreement of what the ratifiers of the text intended, which is not always the case.

          2. NToJ, is it your supposition that the intended meaning of a text is what a textualist such as Gorsuch relies upon? I thought original intended meaning was a concept originalists relied upon citing, while reciting mostly modern understandings, for want of better knowledge. Isn’t there some difference between a textualist and an originalist? You seem to be saying they are both words to describe the same thing.

            1. It’s a complicated question. Textualism answers several calls.

              First, some textualists argue that what original intent people claim is “intent” is not real. Suppose a single author writes a line. It says: “X.” The source of the intent behind X is the subjective mind of one person. If a message is the collective work of two people (say a contract) the issue is much more complicated. If the subjective minds of the contracting parties disagree on the intended meaning, in what sense is there an actual intent independent of the contract? As you might imagine, this issue gets way more complicated as you add parties. If the message is not just the text but a ratification event, that takes place over years, involves hundreds of people from different places, it may not be the case that there is an “intent” independent of the text. And so some textualists assert that there can be no intent independent of the text. That doesn’t mean it’s unbounded; textualists still believe that the intent to be derived from the words must be limited to the common usage of the words at the time of the enactment/ratification. This is not because they know what all the enactors/ratifiers intended, but are using the best proxy available.

              All textualists are originalists (until Gorsuch came along); they’re not denying that the salient feature of interpreting a text is original intent, they’re just denying that the original intent is what any individual ratifier said. Not all originalists are textualists. But most originalists exercise textualism as a methodology here and there. I guess the easiest way to suss this out is that textualists are a subset of originalists, that all are looking for “original intended meaning” but deny certain sources as authoritative for what constitutes “original intended meaning”.

            2. “NToJ, is it your supposition that the intended meaning of a text is what a textualist such as Gorsuch relies upon?”

              If the text was well-drafted, then the drafters carefully considered exactly what words to use, knowing that, with time, the meanings of some words changes. In legal writing, there are “terms of art” which have become locked in meaning because of their use in legal writing. This is why non-lawyers complain about how hard it is to read legal documents, lawyers use these terms of art in accordance with their legal meaning, rather than in accordance with their common meaning. You can see a great deal of this is 14th-amendment court rulings, as the meanings of the phrases “equal protection” and “due process” have become shorthand for entire doctrines related to their use in the 14th, only some of which coincide with their ordinary meanings. And any scholar of first amendment law can point out any number of things it turns out Congress can make laws abridging freedom of speech, assembly, and religion despite the plain language of the first amendment which says “Congress shall make no law…” and the lack of the word “EXCEPT”.

        2. “Modern Americans know that phrase either from the Bible, or from the meaning President Reagan gave it—which was an exact opposite of the meaning intended by John Winthrop in his 1630 sermon…”

          Isn’t this a nice concession!

          1. NToJ, I did mention an entire book, which I own, on that one quite limited historical subject. So what concession are you talking about?

            1. It’s a concession that the original intended meaning didn’t change, just that someone else’s interpretation was wrong. The concept of John Winthrop having a “meaning intended” doesn’t make sense if that can change, over time. Only a person who believed that John Winthrop had an unalterable intended meaning could claim that “the meaning intended by John Winthrop” existed in the first place.

              1. NToJ, the text is identical, then and now. But the meaning is opposite, then and now. That tells me that reliance on TEXT as the authority is a system that has to accommodate changed meanings.

                Your interpretation seems to be that John Winthrop is not Ronald Reagan, and that means because Winthrop came first, he established the meaning, and Reagan got it wrong. But Winthrop’s interpretation was far from being the first. The text is from the Bible.

                1. This subject comes up a lot in law, frequently in contract interpretation. The doctrine of “four corners” is equivalent to textualism. Under that doctine, a contract is whatever got written down, and neither party’s interpretation of what the contract means or was intended for carries any weight for the court interpreting it. If the contract specifies that 500 “birds” are to be delivered, then it makes no difference if party A is a chicken processor and party B is a chicken farmer, if party B delivered 500 sparrows then the term is met. Commercial law under the UCC tends to look to other sources of information about the contract terms beyond just what got written down.

        3. All your last example shows is that Reagan made a mistake through historical ignorance.

          I don’t think textualism requires an ignorant or stupid reading of the text. One is still allowed to take into account that “chat” means one thing if it’s written in English and another if it’s written in French, or “fender” if it’s British vs American. And it applies to time as well as culture. One is still allowed to understand that “gay” and “make love” mean one thing in a Victorian text and another in a modern text.

          1. ducksalad, historical ignorance—and its near universal extent among not only lawyers, but among historical laymen everywhere—is what I am talking about. The word comparisons you cite are the ones you know. What about the ones you never heard of? Historical records are awash in them. And comparisons of meaning among ambiguous words is the least of the problem. Meanings of words well understood, but transformed by unfamiliar period context is the greater problem.

            Assuming you are seriously interested, I will offer you an example to look at. I mentioned John Winthrop, and his famous sermon. Why not give it a read, and then answer this question: was John Winthrop a communist? If you have the historical chops for it, you can probably write about 30 pages, and answer the question in the negative. I would expect less insight from right wingers of the sort who comment here. If you don’t already know A Model of Christian Charity, then it might entertain you to read it through, with an eye to imagining how dumbfounded Ronald Reagan would have been had he done so.

        4. If the text of a constitution or statute is not to be relied on, then what is the relation between a constitution or statute and law? Do we keep copies of constitutions around only for use by history scholars? To what does “this Constitution” refer in Article VI? Does anyone believe that “domestic Violence” in Article IV § 4 refers to intra-family assault?

          1. brec, you ask penetrating questions. I suggest the answer is that the Constitution is the fount of law, but must also be regarded as a beginning de novo, which means analysis of the Constitution itself—as opposed to the laws made pursuant to it—is a task more accessible to historians than to lawyers. The lawyers are indeed the experts on the laws. I get that they also suppose they are the experts on the Constitution. Problem is, what field of expertise can we find which lawyers do not suppose they can speak on with expertise? Supposition does not make it so.

      2. “To do otherwise is to usurp the authority of those who are actually entitled to amend the law.”

        But have chosen not to amend it, even though the words have changed meaning. This is inherently an endorsement of the changed meaning.

  22. “transgender status is not relevant to employment decisions” — what about transgender _appearance_? A funeral director whose appearance is jarring to many customers — whether because it’s transgender or otherwise highly unconventional — can make it hard for clients to focus on their grief. Disability discrimination is illegal, but can’t a TV station decline to hire a news anchor with a disfigured face?

    Of course, there’s a chicken-and-egg problem: if there’s less discrimination against transgender individuals, transgender appearance will over time stop being jarring. And a black person’s appearance in a white neighborhood was once jarring. If the law sets down ideals based on Rawlsian fairness, society will eventually adopt them as second nature.

    1. Speaking just to the news anchor question, I would welcome the disfigured person with relief. Even when the news babes now monopolizing the airwaves seem superficially competent, I can’t get past the suspicion they got their jobs mostly with their looks. Which among them does anyone suppose is a driving force in the news organization, shaping news gathering, critiquing the results, and holding the line against corruption of the news by partisan politics or commercialization? Rachel Maddow, maybe. I can’t think of another.

      My models for that behavior are long gone—folks like Murrow, Sevareid, Cronkite, and Howard K. Smith. On the rare occasions when I see an ordinary-looking person on TV news today, I think, “This one must be good, or he/she would never have this job.” That almost always turns out to be true, but it seldom happens, which is too bad.

      1. The untelegenic-of-appearance journalists have to fall back on print journalism. It’s just as well, as broadcast journalism has largely given way to outrage-based commentary. And if they have to manufacture the outrage, so be it.

  23. A lot of hang wringing in these forums about a decision that doesn’t impact the vast majority of you at all.

    It does impact me and my husband. And for that I’m grateful.

  24. Gorsuch is right that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” The two are, as he puts it, “inextricably connected.”

    How can “necessarily” and “inextricably” be correct? It may be uncommon, but — as Alito’s dissent implies — surely it is not that difficult to construct a hypothetical in which an employment decision-maker refuses to hire, or fires, someone knowing only that the victim (in my personal terms) is gay or trans without knowing the victim’s sex?

    1. Gorsuch counters:

      By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women […] the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.

      In other words, a but-for cause is the sex of the would-be employee even when the employer doesn’t know what that sex is.

    2. If you know a person is gay, then you know they prefer to have sex with people of the same sex they are. The definition of “gay” necessarily includes consideration of sex Go ahead, construct a definition of “gay” that works with no reference at all to the person’s sex.

  25. I am amazed (and appalled) at how many commenters think Gorsuch redefined “sex” to be either sexual orientation or gender identity. He did no such thing. To the contrary he accepted that “sex” refers only to biological distinctions between men and women. Gorsuch then said the unambiguous original public understanding of the meaning of “because of” is a but-for causation standard. Thus, the unambiguous original public understanding of the meaning of “because of sex” is had the person been a biological male (female) instead of a biological female (male), they would not have been fired.

    Perhaps Gorsuch is wrong as a matter of “proper” textualism, but at least the arguments against him should be based on what he said rather than straw men.

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