Statutory Interpretation

Bostock v. Clayton County and the Debate over the Meaning of "Ordinary Meaning"

Both sides in the landmark employment discrimination decision agree that laws should generally be interpreted based on the "ordinary meaning" of their words. But they differ on what that entails.

|The Volokh Conspiracy |

In the recent landmark Supreme Court decision in Bostock v. Clayton County, which ruled that discrimination against gays and lesbians qualifies as sex discrimination under the Civil Rights Act of 1964, Justice Neil Gorsuch's majority opinion relied on the longstanding rule that the text of a law should generally be interpreted in accordance with its "ordinary meaning," not some technical meaning accessible only to experts.

But, in a dissenting opinion, Justice Brett Kavanaugh argued that Gorsuch had conflated "ordinary meaning" and "literal meaning." The result is an interesting dispute over what exactly counts as "ordinary meaning." The meaning of "ordinary meaning" may not be as straightforward as many people like to assume! While Kavanaugh makes some interesting points, I think he is actually the one conflating ordinary meaning with other concepts.

The relevant provision of Title VII of the Civil Rights Act says employers may not "discriminate" against employees "because of…sex." The point in dispute is about the ordinary meaning of these seemingly simple words.

Here's Gorsuch's analysis:

[A]s this Court has previ­ously explained, "the ordinary meaning of 'because of ' is 'by reason of' or 'on account of.'" University of Tex. Southwest­ern Medical Center v. Nassar, 570 U. S. 338, 350 (2013) (cit­ing Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009); quotation altered). In the language of law, this means that Title VII's "because of " test incorporates the "'simple'" and "traditional" standard of but-for causation. Nassar, 570 U. S., at 346, 360. That form of causation is established whenever a particular outcome would not have happened "but for" the purported cause….

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…

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.

This seems right to me. In ordinary English usage, when we say A happened "because of" B, we usually mean that A would not have occurred if B had not. We don't mean that B was necessarily the sole cause of A. Thus, if I say Jones died because Smith hit him on the head, that doesn't exclude the possibility that a preexisting head injury was also a contributing factor. It just means Jones would still be alive if Smith hadn't hit him. Similarly, as Gorsuch explains, the same goes when an employer fires a man for being attracted to other men, but would not have fired a woman for the same "traits or actions."

Kavanaugh, however, has a different interpretation of ordinary meaning:

For the sake of argument, I will assume that firing some­one because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. But to prevail in this case with their literalist approach, the plain­tiffs must establish that courts, when interpreting a stat­ute, adhere to literal meaning rather than ordinary meaning. Or alternatively, the plaintiffs must establish that the ordinary meaning of "discriminate because of sex"—not just the literal meaning—encompasses sexual orientation discrimination…..

There is no serious debate about the foundational inter­pretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes… This approach recog­nizes that the literal or dictionary definitions of words will often fail to account for settled nuances or background con­ventions that qualify the literal meaning of language and,in particular, of legal language…."

Both common parlance and com­mon legal usage treat sex discrimination and sexual orien­tation discrimination as two distinct categories of discrimination—back in 1964 and still today….

As to common parlance, few in 1964 (or today) would de­scribe a firing because of sexual orientation as a firing be­cause of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex dis­crimination. The majority opinion acknowledges the com­mon understanding, noting that the plaintiffs here proba­bly did not tell their friends that they were fired because of their sex.

Kavanaugh goes on to note that Congress and judicial decisions also, at least until recently, treated "sex discrimination" and "sexual orientation discrimination" as two distinct categories.

The problem with Kavanaugh's analysis is that "common parlance" is not actually the same thing as "ordinary meaning."The former is a matter of frequency of usage, while the latter is about how laypeople (as opposed to experts) understand the meaning of specific words and phrases. An infrequent or uncommon phrase may still be ordinary.

Often, common parlance uses distinctive terminology to delineate something that is a subset of a larger category. For example, consider a woman who is fired because she refuses the boss's demand for sexual favors—a demand he does not impose on male employees. In "common parlance," most people would say she was fired because of "sexual harassment," not "sex discrimination." To put it in Kavanaugh's terms, the woman in question would likely tell her friends she got fired as a result of the former,  probably without even mentioning the latter. But a moment's reflection also makes clear she was fired "because of sex." If she were a man, the boss would not have demanded sexual favors in the first place, and would not have fired her for refusing. You don't have to be an employment law expert to see that she was fired because of sex—in the entirely ordinary meaning of those words.

Another way of seeing this point is to recognize that "common parlance" often focuses on what we might call the "paradigm case" of a phenomenon—the one that first comes to mind when we hear the words that refer to it. When someone says that a person was fired because of sex discrimination, the image that comes to mind is that of an employer who objects to the mere presence of women in the workplace because he considers them inferior, or at least believes they are not fit to do this specific job.

But when presented with scenarios like sexual harassment, we can readily see that the woman who was fired because she refused to sleep with the boss is also a victim of sex discrimination (assuming he does not make similar demands of male employees). And that's true even if her gender wasn't the sole cause of the firing, and even if the employer has no general objection to having female employees, and doesn't doubt their ability to do the work. This is the kind of common-sense "ordinary" reasoning that led the Supreme Court to unanimously rule that sexual harassment directed at specific gender violates Title VII. It is an example of how ordinary meaning often encompasses more than a paradigm case, and more than "common parlance."

What is true of sexual harassment is also true of sexual orientation discrimination. In common parlance, both are usually denoted with distinctive terms, rather than referred to as "sex discrimination." The use of specific terms is convenient and makes it easier for listeners to quickly understand exactly what happened. But that is entirely consistent with the fact that the more specific terms are actually subsets of a broader general concept, and that this relationship between them is easily understood under the ordinary meaning of the words in question.

Kavanaugh's reliance on "common parlance" conflates frequency with ordinariness. In ordinary discourse, unlike in legal analysis, we rarely need to refer to the relationship between the narrower category and the broader one; we find it more convenient to use the more specific term rather than a more general one. But that doesn't put that connection outside the bounds of ordinary meaning.

Kavanaugh and Justice Samuel Alito (who wrote the other dissent in this case) also emphasize that most people in 1964—and Congress and the courts for many years afterwards—did not think that Title VII banned sexual orientation discrimination. But that fact was not the result of any special understanding of the "ordinary meaning" of words like "because" and "sex." As Gorsuch notes, in 1964, the words "sex," "discriminate" and "because of" had much the same ordinary meanings as they do today. The reason why most people assumed that Title VII did not ban sexual orientation discrimination was not based on an interpretation of the specific words in the law, but based on a general societal understanding that homophobia was normal, justified (or at least not reprehensible), and should not be forbidden.

Most ordinary people do not closely consider the wording of laws, even important ones like Title VII. They instead rely on information shortcuts, including societal understandings of the kind described above.

As Gorsuch points out, within a few years of the passage of the law, observers who did closely study the text of the law realized that sexual orientation discrimination was a form of sex discrimination under the wording of Title VII. Some began to file cases making such claims. That argument was rejected by courts and various government agencies—but not because a different understanding of the ordinary meaning of specific words. Rather, politicians, judges, and bureaucrats were unwilling to disturb what was then a broad societal agreement that sexual orientation discrimination should be permitted.

For similar reasons, from 1883 until the 1960s, federal courts rejected the argument that laws banning interracial sex and marriage discriminated on the basis of race. Societal opposition to interracial marriage was so widespread that judges—and many others—were unwilling or unable to recognize what would otherwise have been the obvious truth that these laws did in fact discriminate on the basis of race, for the simple reason that they forbade members of one race to do something that was permitted to members of another.

In sum, the "ordinary meaning" of words can and often does encompass concepts that are rarely used in common parlance, and also ones that go against dominant social conventions. That doesn't by itself prove that the Court decided Bostock correctly. Perhaps the ordinary meaning of specific words and phrases should not control the outcome of a case when it conflicts with a broad societal understanding of what a law is supposed to do. Moreover, some judges and legal scholars reject textualism in favor of purposivism; for reasons I explained my earlier post about Bostock, there is a solid purposivist case for the position taken by the Bostock dissenters, though they themselves didn't focus on it. But Kavanaugh's attempt to conflate ordinary meaning with common parlance fails.

The fact that this dispute over the meaning of "ordinary meaning" occurred in the first place. has led observers such as Michael Dorf to conclude that Bostock shows that textualism is highly indeterminate and "has little binding effect." If the ordinary meaning text was really so clear, why did Gorsuch and Kavanaugh have to devote many thousands of words to explaining its meaning? Cynics might add that the fact I just spent some 1800 words expounding on the dispute further reinforces Dorf's point.

Bostock does indeed show that "ordinary meaning" is a more complicated beast than we might have previously thought. But it isn't a typical case. In most situations, there is no such sharp divide between the ordinary meaning of a law's language and background societal understandings. Nor is there usually such a gap between "common parlance" (understood as frequency of use), and the relevant ordinary meaning of a law's terms.

Under textualism, as under other interpretive theories, there are going to be some hard or unusual cases. But that doesn't render textualism indeterminate in the vast majority of situations. It is not truly indeterminate even here. Although both sides have some reasonable arguments, Gorsuch's is substantially better.

 

 

 

NEXT: Federal Judge: Michigan Closure of Gyms Is Irrational, and Thus Unconstitutional

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  1. See my blog post on Bostock. https://www.rasmusen.org/blog1/is-the-bostock-case-fraud-on-the-court-and-void/ It’s not on the Supreme Court case– it’s about the pleadings. It seems everyone knew Bostock was homosexual and he wasn’t fired for that at all, but they kept quiet till the SC had ruled so as not to make the case appear fraudulent. I’m wondering if Rule 11 can be applied, or contempt. Advice welcomed. I’m also wondering if I can bring a pro se non-party motion asking for Rule 11— soemthing which if possible ought to be done very widely with frivolous cases.
    Interesting jurisprudence questioN: if the actual case is imaginary, is hte appellate decision based on it good law ?

    1. I would say that, given everything else about the case, they wouldn’t care at all. Roe of Roe v Wade came out after the case and announced that her lawyer had defrauded her to advance the case, and spent a good part of her life as an anti-abortion advocate, (Yes, there’s been a documentary since that claimed otherwise, but that’s the fraud.) but you didn’t see Roe v Wade falling.

      The nominal plaintiffs in cases like these are just placeholders, they don’t actually mean anything, and it’s not all that uncommon for the cases to be setup jobs from start to finish, just to provide a pretext for the Court to issue a ruling it wants to.

      1. Well, issue a ruling *someone* wants it to.

  2. “But when presented with scenarios like sexual harassment, we can readily see that the woman who was fired because she refused to sleep with the boss is also a victim of sex discrimination (assuming he does not make similar demands of male employees).”

    What if he does make similar demands of male employees?

    1. I think that, in that case, there’d be clear cases for sexual harassment, but not for sex discrimination, for the reason you allude to.
      Similarly, I assume that if I hate (and my actions and words follow) blacks, whites, Asians, Latinos, etc etc, I can be sued for many things. But not for racial discrimination.
      Sounds like an interesting law school final exam question. 🙂

      1. “I think that, in that case, there’d be clear cases for sexual harassment, but not for sex discrimination, for the reason you allude to.”

        Which is stupid. Just like it’s stupid that it’s now illegal to fire someone for being gay or straight, but perfectly okay to fire them for being bisexual or asexual. When an interpretation leads to multiple stupid results that other interpretations don’t, that’s a reason to avoid the stupid interpretation.

    2. My thought too. Suppose the boss is bisexual, or just wants some quick handjob and doesn’t care who does it. Same sexual harassment as before, but now you can’t fall back on sex.

      I was on the fence before, thinking it was just a lawyerly quibble signifying nothing except a ready excuse for the desired outcome, and typical of what happens when governments try to establish one law for every possibility. But I’m beginning to come around to Kavanaugh’s interpretation now.

      Also reminds me of that idea that banning gay marriage was sex discrimination because it only banned males from marrying males, and females from marrying females. Yes, and the law equally forbids both the rich and the poor from sleeping under bridges. Sometimes, usually, the law really is a ass.

  3. 1) Bill Clinton graduated from Yale Law School, went on to teach Con Law and be AG of AK, before becoming POTUS and having to defend himself in more than one case in which the “ordinary meaning,” “literal meaning,” “Biblical meaning,” and still other understandings related to sexual (mis)conduct were relevant issues. Wouldn’t it be interesting to know his thinking about the meaning of the terms for Bostock’s purposes, as well as the basic question of what the meaning of “is” is? Or would his confession of perjury disqualify him as an expert, notwithstand his expertise?

    2) This, of course, was all Title VII stuff. Will any of the same considerations be relevant when the Court has to decide Title IX cases, in particular ones relating to transgendered individuals competing in athletic competitions? That day can’t be far off, can it, and Trump would delight in stirring the pot on that one.

    3) Why was Bostock fired, if not for coming out as gay?

    1. 3) Financial misconduct

    2. You’ve touched upon a sensitive topic, in that this blog of law professors leans Republican and got a lot of mileage out of criticizing the last two Democratic Presidents . . . yet those two Presidents outstripped all the VC’ers in law school credentials, and that at an early age. Both of them taught Con Law (the most prestigious law school course) at the most prestigious law schools in their respective home states.

  4. If Gorsuch’s reasoning is correct, how do you deal with a situation where an employee at a fitness center who is male (and identifies as male) is fired for repeatedly entering the female locker room? If he were a female, he wouldn’t have been fired, so the firing is because of sex. Does that mean it’s illegal under Bostock?

    I really want to get on board with Gorsuch’s reasoning, but examples like these make me hesitate.

    1. I’m reasonably sure Title VII allows for sex discrimination when it is a fundamental part of the job, and that the court would hold it was fundamental in the case of jobs requiring the entering of sex-specific locker rooms.

      1. For example: men can’t very well model bras. It’s hardly illegal sex discrimination to not hire men for such positions.

        1. The trans sexuals, who are very insistent that they really are the sex they pretend to be, would argue with you about that.

          And they’re going to be very pissed if the Court ends up treating them as a separate “sex” that can’t be discriminated against, rather than just as men-who-are-women or women-who-are-men.

          1. Well, that’s the trick, isn’t it?
            WHICH sex s the opposite one in a case involving a transgender?
            Since this ruling seems to imply both that there is no sex (based on the transgender part) and that you have to have an opposite sex (for the homosexual part), I don’t see where a citizen has a consistent basis for determining what is discrimination and what is not.

            Anyway, at last we have women allowed to go topless anywhere men are allowed to go topless; as long as we can figure out what is a woman, and what is a man. This should save municipalities a lot of cop money since they no longer have to investigate the opacity of pasties.

      2. “I’m reasonably sure Title VII allows for sex discrimination when it is a fundamental part of the job, and that the court would hold it was fundamental in the case of jobs requiring the entering of sex-specific locker rooms.”

        What if they work in the accounting department and entering locker rooms isn’t a part of their job duties? Of course they would find a way to justify the firing, but this is just another example of the problems with Gorsuch’s framing.

  5. Originalism goes out the window. Good riddance, I say.

    1. So what’s the limiting principle? The imagination of the Justices? Anything goes?
      Let’s hope these Platonic guardians will always be noble and smart and wise. Given the history of humanity I would suggest that would the triumph of hope over experience.

      1. No it’s the “genius of the people”. You can look it up.

  6. Are tomatoes a fruit for legal purposes? It strikes me that Gorsuch has just overturned Nix v. Hedden.

    1. Knowledge: Knowing a tomato is a fruit.
      Wisdom: Not putting a tomato in a fruit salad.

      I think the court just put a tomato in the salad.

      1. What’s wrong with a salad of tomatoes, cucumbers, and bell peppers? Throw in some jalapenos if you want a little extra heat. Even throwing in some vegetables like onions won’t ruin the fruit salad.

        “Vegetables” that are really “fruits” are really common. Zucchini, squash, even the dreaded green bean is technically a fruit.

      2. Not so fast. I have a recipe for a salad of tomatoes, bananas, mandarin oranges and shrimp that’s absolutely delicious with a dressing of honey, vinegar, oil and white pepper.

  7. Anyway, I had some interest in the history of laws against interracial marriage, (I’m in one!) and I’d like to point out that, during the debate over the 14th amendment it was brought up that it would mandate that such laws be struck down, (By opponents, mind you, in much the same way the ERA was predicted to mandate same sex bathrooms.) and once ratified courts started doing exactly that, immediately.

    The conclusion that it hadn’t prohibited such laws was part and parcel with the Supreme court’s effort to render the 14th amendment moot, it was absolutely the case that this was a widely understood implication, even if advocates downplayed it.

    So, I have to ask the question: When Title VII was being debated, did people commonly interpret it in this fashion? Did courts immediately start enforcing it in this fashion once it was enacted? If this really was the case, I’d be forced to admit Gorsuch wasn’t being unreasonable.

    Mind, I’m in agreement with Goldwater at the time about the 1964 Civil Rights act: By reaching non-governmental conduct, it exceeded federal power under the 14th amendment, and by reaching things that weren’t actually interstate commerce, could not be justified under the interstate commerce clause, either. It should not have been enacted as written, and rightfully should have been struck down.

    1. The conclusion that it hadn’t prohibited such laws was part and parcel with the Supreme court’s effort to render the 14th amendment moot, it was absolutely the case that this was a widely understood implication, even if advocates downplayed it.

      Not according to Robert Bork: “no one then imagined that the equal protection clause might affect school segregation.”

  8. This is the sort of “clever” reasoning that gives lawyers a bad name. When the law was passed, the members of Congress didn’t intend to cover sexual orientation (or sexual harassment, for that matter); they intended to protect a woman from not being hired because she was a woman. You can see this intent from the many times they tried, and failed, to extend it to cover sexual orientation. Yes, you can “cleverly” define the problem as treating a man or a woman differently with regards to their attraction to a man or a woman, but there is no particular man or woman being discussed and the phrases we use discuss the relationship are “same sex” and “opposite sex”. A person fired because they are attracted to the same sex is not fired because of their sex unless only gay men are fired and not lesbian women. I wouldn’t work for a business that had that fired people for being homosexual nor would I knowingly do business with them, but stretching the law to cover things it was never intended to cover just reduces the rule of law to the rule of man.

    1. There’d scarcely be a modern practice of constitutional law without sophistry. They just don’t accept anymore that the law can mean things they don’t like. Living constitutionalism has infected the whole legal community, and originalism is on its way out now.

      1. Yes! Isn’t it terrible having such famous liberal living constitutionalists as Neil Gorsuch on the Court?

  9. And that’s true even if her gender wasn’t the sole cause of the firing

    Why use “gender” when you mean “sex” ? When you set out to describe the concept of “ordinary meaning” that sort of thing tends to damage your brand.

    1. Because sex and gender don’t mean the same thing, and in this case (not presuming to read prof. Somin’s mind) gender was almost certainly the intended word?

      1. But when presented with scenarios like sexual harassment, we can readily see that the woman who was fired because she refused to sleep with the boss is also a victim of sex discrimination (assuming he does not make similar demands of male employees). And that’s true even if her gender wasn’t the sole cause of the firing…..

        He is postulating a boss who fires a woman employee for refusing to sleep with him but who would not make similar copulatory demands of male employees. And he then ascribes the boss’s discrimination to the woman’s “gender.”

        So if you are right that Somin really means “gender” then his hypothetical becomes very kinky indeed. For we have a postulated boss who fancies employees of female gender (not sex) – ie people who identify as female gender, whether they are of female sex or male sex. And who does not fancy employees of male gender (whether of male or female sex.) The only traditional element is that the woman employee identifies herself as of female gender. So we don’t have a boss who is heterosexual rather than homosexual, we have a boss who is heterogenderish rather than homogenderish.

        If that is what Somin meant then his hypo collapses in a heap, for when we make the Gorsuch approved “but for” substitution, holding everything else constant, but flipping the employee’s sex, then we have to ask whether the boss would have fired an employee of male sex and female gender for turning him down, and the answer is yes he would, because he fancies employees of either sex so long as they identify as female gender. So Somin’s hypo would not produce any sex discrimination.

        But returning to what currently passes for reality, he meant sex. But he wrote gender. Is he confused ? Is he a sleepy middle aged man trying to be woke ?

        btw I’d be fascinated to know if “gender orientation” a la your interpretation of Somin is actually a thing. Are there really actual humans whose copulatory spirits are roused by persons of male gender (irrespective of sex) but not by persons of female gender (irrespective of sex.) Or vice versa. What are the approved initials ?

        1. Indeed, the sophistry is strong here. The woman who declined her bosses advances was fired for being a subpar employee, who then also refused to engage in extra credit (which was only available because of her sex). All the male employees who had ever been fired for being subpar are the ones who faced sex discrimination as they never were given that offer!

          Again, this is how Sominism creates absurd results.

          1. To be fair to Somin, all I was accusing him of was crashing his daughter’s party and attempting some excruciatingly humiliating dance moves in the forlorn hope that it would make him look woke.

            The “sophistry” only emerges from taking Martinned’s response as if it was serious. I don’t for a moment thing Somin really meant “gender” rather than “sex” – he was just embarrassing his daughter.

  10. “…the ‘simple’ and ‘traditional’ standard of but-for causation…That form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause….”

    But usually there’s also a “proximate cause” layer on top of this – to prevent extremely attenuated causation from being sufficient. Otherwise how far does it go? Could one say, for example, “if I weren’t male, I wouldn’t have ever even gone to place/event ‘X’ which means I never would’ve bumped into person ‘Y’ which led me to commit crime ‘Z’,” etc.?

    1. The most interesting part of the “but for’ analysis in the same sex example is that :

      1. “but for” logically implies a necessary condition

      2. the employee’s sex is not a necessary condition for dismissal

      Thus if the employee is male and he is fired for having a sexual relationship with another male, that employee if hypothesised to be female would also be fired for having sex with another female. Thus the employee’s sex is not a necessary condition for firing. The necessary condition is a relation – that the sex of the employee and the sex of the partner are equal, whichever sex that might be.

      You only convert this relational condition into a monopolar condition about the employee’s sex by prior specification of the partner’s sex. That prior specification anchors one end of the relational condition so that you can then arrive at the desired result – that the employee’s sex is a necessary condition for the firing.

      This sort of relational condition is quite different from a normal “but for” case. Thus if the bridge collapses because (a) someone has set charges and (b) you press the detonator, the bridge wouldn’t have collapsed “but for” you pressing the detonator. If you don’t press the detonator the bridge stays up.

      The same sex case is like a more sophisticated wiring system for the bridge demolition.

      If you press button A to arm the detonator, then if you press button B, the bridge goes up.

      If you press button B without pressing button A, the bridge doesn’t go up.

      But if you press neither button, the bridge goes up anyway, on a timer.

      So pressing button B is a “but for” cause of the bridge going up, so long as you press button A first. But if you don’t press button A first, then the bridge will go up unless you press button B. So pressing button B and the bridge going up are not in a straightforward causal chain. It’s not pressing button B that causes the bridge to go up, it’s the relationship between pressing button A and button B that counts. You can only make pressing button B a “but for” cause of the bridge going up if you first specify whether or not button A has been pressed already.

      1. So pressing button B is a “but for” cause of the bridge going up, so long as you press button A first.

        Bostock was fired for pressing button A. So as applied to him, it would appear that pressing button B is a but-for cause.

        1. Correction: Bostock was fired for the bridge going up only after the employer knew he pressed button A. So as applied to him, it would appear that pressing button B is a but-for cause.

          1. It depends how you choose to frame it.

            From the employer’s perspective, Bostock was fired for blowing up the bridge. It did not matter to the employer whether the employee blew up the bridge by pressing button A and then button B, or by not pressing button A and then not pressing button B.

            From Gorsuch’s (and your) point of view, Bostock was fired for pressing button B after he had pressed button A.

            But Gorsuch’s frame is much less reasonable than the employer’s.

            Gorsuch’s incompetent female employee example is weak because he confuses – to borrow from electromagnetism – causes in series, with causes in parallel.

            He offers us “incompetence” and “female” in series – each as a necessary but not sufficient condition. What he fails to account for is that, to make a true analogy with Bostock’s case, he needs to explain why an employer would fire an incompetent female employee and a competent male employee. This shows that his analogy is not analogous. His explanation of causes for firing only explains half the firings.

            The true logical relation is – neither the sex of Bostock nor the sex of his partner is a necessary condition. We do not have two separate conditions we have just a single necessary (and sufficient) condition – that the sex of each partner is the same.

            The employer’s frame – that it is not sex but sameness of sex that is the true “because” – is more realistic.

            But neither frame is entailed by the text, so unlike both sides I do not claim the answer is clear from the text itself. “because of” is ambiguous here, and so I think we have to fall back on a bit of common sense. And that requires accepting that the correct answer to “because” involves comparing the treatment of the real male Mr Bostock and his same sex partner partner, with a hypothetical female Ms Bostock and her same sex partner.

        2. I will get this right eventually. The bridge going up is Bostock being fired. The bridge went up only after Bostock pressed button A. Therefore as applied to him, it would appear that pressing button B is a but-for cause for the bridge going up.

          1. But this fails to account for the fact that the bridge would also have gone up if Bostock had pressed neither button.

            It’s not : B => bang
            Nor is it simply : A&B => bang

            It’s the more complicated logical beastie :

            – (A XOR B) => bang

            1. But this fails to account for the fact that the bridge would also have gone up if Bostock had pressed neither button

              True, but the employer fired Bostock only after learning he had pressed Button A. Or, as you put it:

              You can only make pressing button B a “but for” cause of the bridge going up if you first specify whether or not button A has been pressed already.

              1. Indeed. But the question is whether specifying whether button A has or has not been pressed already is the most reasonable way of determining whether the bridge blew up “because of” button B being pressed.

                Here’s another hypo. A cop hears a some shouting. He investigates and finds a distressed shop owner saying he’s been robbed. Asked for a description, the shop owner says “Look there’s the guy running into that alley.” The cop just catches a glimpse of someone dashing into an alley. The person looks about 5 foot 8 tall, medium build. He’s wearing jeans and a hoodie, but the cop can’t see a face or hands. The shop owner says “Look that’s the guy. The black guy wearing the hoodie !”

                The cop runs to the alley. There are two guys there, one black and one white, both wearing hoodies (of the same color.) There seems to be no other exits from the alley. The cop arrests the black guy in the hoodie.

                On the Gorsuch analysis the cop discriminated against the black guy “because of” his race. He did not arrest the hoodie wearing white guy – he singled out the black guy. Once the shop owner has specified the fact that the robber was a black guy, we take that as part of the furniture, and then we try to understand why the cop arrested the black hoodied guy in the alley rather than the white hoodied guy. Why did he choose the black guy ? Because he was black.

                But this is a completely unreasonable way of determining why the cop acted as he did. The reasonable way is to say that the cop arrested the black guy “because of ” the fact that he met the shop owner’s description of the robber. If the shop owner had specified a Chinese girl in a hoodie, the the cop wouldn’t have arrested the black guy.

                The guy’s blackness had precisely zip to do with the cop’s decision making process aside from the fact that it was part of the description of the robber. To say that the cop discriminated against the black guy “because of” his race is just silly.

  11. Gorsuch and Co is intentionally conflating the word ‘related’ and ‘derived’ with ‘ordinary meaning’. Essentially the Court is bringing all characteristics you can derive from the concept of sex into the same protected Tent. To understand how insane this is consider that…

    Under no ordinary or technical or colloquial meaning is frowning upon taking an angle grinder to the genitals, discrimination. Its (related) to sex but you don’t need to know what sex the person is and its not dependent on a particular sex. Now people might argue that this ruling only applies to milder cases. Like maybe some dude just says he’s a girl but everybody knows thats bs and this will apply to everything where a mutilated hairy dude in a pink tutu whines about this or that and if it doesn’t they’ll just go back to the Court and obtain another BS ruling.

    Another absurdity with bringing derived characteristics of protected characteristics into the protected category is that it decrees equality in places where it clearly doesn’t exist in reality.

    Under this reasoning, technically, masturbating in public with the tip of your penis should be legal as well because in a woman all you’d be doing is fingering air and the semen that would eject all over the place doesn’t exist.

  12. I’m sorry, but I have to agree with Kavanaugh’s judgement here.

    “Discrimination because of sex” is a clear, unambiguous statement while in a list of physical characteristics. It does not refer to the act between two persons. This is law, not poetry. You cannot read the same word in two completely different ways simultaneously. It cannot be both a noun and a verb.

    I will except the argument that transgender persons are included. since the distinction between sex and gender were not separated in law at the time.

    However, the authors of the civil rights act were well aware of sexuality. They explicitly did not include it in the list.

    It is not the job of the courts to rewrite laws by playing fast and loose with definitions. The correct decision was that Congress needs to amend the act.

    1. It does not refer to the act between two persons

      Gorsuch agrees with you.

  13. Looks to me like conflating concepts and words. Separating the application of a word from its meaning seems to me a rather odd thing to do. The meaning of words is based on use. Not so much for concepts.

    1. To a textualist, unambiguous words speak for themselves without reference to an application.

  14. “Similarly, as Gorsuch explains, the same goes when an employer fire a man for being attracted to other men, but would not have fired a woman for the same “traits or actions.”

    As long as you don’t consider homosexuality a trait, that is.

    1. I agree this is where Gorsuch went wrong (*). However quite ironically, many people who oppose this decision believe homosexuality is a behavior, not a trait. I am OK with hoisting them up with their own petard.

      (*) I think the result is correct based on impermissible sex stereotyping.

    2. Homosexuality may be a trait. But homosexual behavior is a behavior. And endorsement of homosexual behavior is a viewpoint.

      And when religious institutions discriminate against homosexuals it’s primarily because of their viewpoint. These institutions generally wouldn’t discriminate against someone who is fully “in the closet” because they found out he once confided something to a therapist.

      If an employer can fire someone because their 2018 halloween costume outed them as racist, then a religious institution should be allowed to fire someone who has a viewpoint that the institution views as immoral or strongly disagrees with.

      1. If you are correct, then effectively Title VII does not exist any more. An employer would only have to argue they oppose the behavior of the races mixing together at work, and that Title VII as applied to him is viewpoint discriminatory.

        Me thinks not.

      2. But of course, the dishonest left claims that engaging in
        gay anal sodomy is an inherent component of male homosexuality.

  15. Cass Sunstein points out that those applauding Gorsuch’s opinion should consider what the effect of it might be on the 1979 case upholding affirmative action against a Title VII challenge. The court in that case referred to a “familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers,” but this is directly contrary to the way Gorsuch analyzed this case, to which all liberals on the court assented. The 1979 case might survive this via stare decisis.

  16. Eugene Volokh:

    The relevant provision of Title VII of the Civil Rights Act says employers may not “discriminate” against employees “because of…sex.” The point in dispute is about the ordinary meaning of these seemingly simple words.

    Gorsuch:

    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.

    Overlooked language in Title VII in arriving at the above:

    (k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, . . .

    Does context not mean anything? We have this exhaustive, infinitesimal hair splitting about the ordinary meaning of one isolated phrase “because of sex” to arrive at a conclusion that Title VII protects men who suddenly start coming to work dressed as women, even though the law was clearly about protecting women.

    What does this decision do to ex post facto as the majority did here — rewrote a law to mean something entirely different in the process of adjuticating the case before them, jerking the rug out from under the defendant?

    What about when this gets applied to Title IX, which aas the same langague regarding discrimination on the basis of sex as does Title VII? A tsunami of lawsuits is (LGBT lawsyers are preparing them as of this moment) coming because of this, and when male athletes want to compete against female athletes and are discriminated against “because of …sex” then how can the Court not let them, in view of this decision? If not, how can “discrimination because of sex” mean one thing in Title VII and mean something else in Title IX?

    I don’t think this decision is going to age well.

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