New on NRO: "Justice Gorsuch's Half-Way Textualism Surprises and Disappoints in the Title VII Cases"

Randy Barnett and I explain where Justice Gorsuch went wrong in Bostock

|The Volokh Conspiracy |

Randy Barnett and I published a new essay in National Review Online, titled "Justice Gorsuch's Half-Way Textualism Surprises and Disappoints in the Title VII Cases." We spent some time thinking about Bostock, and recognized precisely where Justice Gorsuch went wrong.

Here is the introduction:

Title VII of the Civil Rights Act of 1964 made it unlawful for employers to "discriminate against" employees "because of . . . sex." Did that landmark statute also prohibit discrimination against employees because of their sexual orientation or gender identity? In Bostock v. Clayton County, the Supreme Court answered yes by a 6–3 vote. Justice Neil Gorusch wrote the majority opinion, which was joined by Chief Justice John Roberts, and the Court's four progressives. Justices Alito, Thomas, and Kavanaugh dissented.

But we were both surprised and disappointed by Justice Gorsuch's majority decision. And after some reflection, we think we know where he went wrong. Justice Gorsuch's analysis did not begin with first principles. Rather, he simply assumed that decades of case law accurately interpreted Title VII. Indeed, he treated decades of precedent as part of the "law's ordinary meaning" in 1964. Moreover, Justice Gorsuch failed to recognize the relationship between two essential phrases in Title VII: "discriminate against" and "because of." These terms cannot be considered in splendid isolation. When combined, they reference discrimination based on bias or prejudice. In short, Justice Gorsuch built an elaborate textualist framework on a shaky foundation. Regrettably, this half-way textualism led Justice Gorsuch astray.

And the conclusion:

During oral argument in October, Justice Gorsuch suggested that this "case is really close, really close, on the textual evidence." Something apparently changed between October and June when he concluded that the "law's ordinary meaning" in 1964 was "unambiguous." But that meaning only seemed unambiguous because it was premised on a faulty foundation: moving from the ordinary meaning of the phrase "discriminate against because of sex" to a technical meaning of "because of."

In the wake of Bostock, some political conservatives have started to question the merits of textualism itself. We understand the visceral reaction to this surprising decision, but we think this criticism is overstated. Textualism provides the strongest basis to criticize Justice Gorsuch's majority's decision in Bostock.

In dissent, Justice Alito charged that Justice Gorsuch's opinion "sails under a textualist flag," but is more like a "pirate ship." Justice Alito's metaphor is half-right. Justice Gorsuch flew the textualist flag at half-mast.

We welcome any comments or feedback.

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  1. Back in 1964 no one in the Senate or House knew of the existence of gay – called ‘homosexuals’ by the small group aware of their existence – people, so did not include them in the Civil Rights Act. If they had only known of them, they would have been included.
    Good of the Supreme Court to both know what the writers of the act would have done if they only knew, and to include transsexuals as well.

    1. Nice intentionalist argument.

      But that’s not the mode of analysis Gorsuch prefers.

    2. “Back in 1964 no one in the Senate or House knew of the existence of gay – called ‘homosexuals’ by the small group aware of their existence – people”

      Your historical knowledge is … limited. Just as an immediate example, in the 1950s homosexuals in government were deliberately targeted in what is known as the lavender scare, an aspect of the post-war red scare. But more generally, the world was well aware of the existence of homosexuals, even dopey politicians.

    3. “Back in 1964 no one in the Senate or House knew of the existence of gay – called ‘homosexuals’ by the small group aware of their existence…”

      It’s just not true. There were anti-gay laws in 49 or 50 states at the time of the 1964 CRA.

      1. Usually I am the one being literal. Of course everyone knew about gay people, but amazingly they did not include them in the law. So, deciding the law was written to cover something it could have easily included, but somehow forgot is the courts assuming the role of the legislature.

        1. I understood your sarcasm, but you do not understand Gorsuch’s

          The writers of the law put the word sex in to try and torpedo the law, but did not think it through

          The whole point of the decision is that congress needs to write better laws if they expect textualism to save them

          When the text is bad, the interpretation may not be what you want

          The writers of the law could very well have written what they meant, but when you corner yourself into refusing to consider legislative intent, this is where you end up.

          1. “The writers of the law could very well have written what they meant”

            They did. It took 50 years of lawyering to get us here, not reading what they wrote. Legislators can’t protect against 50 years of lawyering.

  2. “Justice Gorsuch flew the textualist flag at half-mast.”

    Befitting its death (if the countless columns to that effect are to be believed.)

  3. The problem here is much more straightforward than JB acknowledges. In order for textualist intellectuals to have high status, they need to deliver substantiative wins for Republican policy preferences. Gorsuch’s only mistake is that he forgot that.

    1. Imagine having privilege this extensive. Acknowledging the overwhelmingly left wing influence courts have had on the US since 1950 is a prerequisite for being taken seriously.

  4. Rather, he simply assumed that decades of case law accurately interpreted Title VII.

    Imagine that! In a common law system, six Supreme Court justices decide they are not the smartest people who ever walked the earth, and pay attention to how the doctrine has iterated over time.

    Seriously, that one sentence refutes this entire essay. If you want to argue all the precedents are wrong- that male-on-male sexual harassment and sex stereotype discrimination should have been upheld as legal, you need to argue that. And even then, you would also need to argue why established doctrine on statutory stare decisis doesn’t preclude the Court from overturning it.

    But you don’t get to just say “how dare the Supreme Court follow its own precedents?”. That’s just beneath you guys. You guys are law professors, and one of you has some significant appellate experience as a lawyer as well. You MUST know why it doesn’t work that way.

    1. Indeed; I don’t think textualism means no stare. That’s a whole separate vein of jurisprudence.

      1. I have a theory about conservative legal thinkers. It actually unites the conservative smart-set, including some of the folks on this blog, and the conservative hoi polloi, including some of the commentators.

        And it is this. I think conservatives have developed sort of Supreme Court anti-canon, of decisions they don’t like and therefore treat as though they don’t exist. Cases like Humphrey’s Executor, and Wickard, and Roe, and Griswold.

        And they get so used to discussing the law with each other in this internal world where all these precedents don’t exist, that it becomes natural for them to utter a sentence like “Rather, he simply assumed that decades of case law accurately interpreted Title VII.” as a criticism of a Supreme Court justice. They are so used to their internal conversations that they don’t even realize what they are saying anymore.

        Obviously, 8 justices of the Supreme Court care about stare decisis. Doesn’t mean they follow it all the time, but they care about it and it’s a factor in their thinking and they try to reason through it even when they are dealing with precedents they don’t like and would like to overturn. But in conservative-land, stare decisis stopped existing long ago. There’s this “constitution” they all talk about all the time in their secret language, arguing from premises they accept but which aren’t operative in the real world.

        1. That …. that is actually a really good point, Dilan.

          “Obviously, 8 justices of the Supreme Court care about stare decisis.”

          Heh.

          1. I qualified my 8 justices statement. When I say they really care, I don’t mean they follow it religiously or apply it in a totally principled matter. I mean that they recognize it as an important part of how the Court does business.

            So for instance, look how Alito handled Boumediene v. Bush yesterday. It’s not that he paid the case total fealty. But he did deal with it, and tried to distinguish it, and recognized it as a precedent that applies to Guantanamo detainees who file habeas petitions seeking release.

            In other words, the different between Supreme Court-world (except Thomas) and conservative-world isn’t that they always follow precedent; it’s that they recognize precedents and stare decisis exist and consider that to be something that must be accounted for in their analysis. Where as conservative world seems to have skipped right past that.

            1. To clarify, I just thought it was funny that you specifically stated eight justices.

              Both of us know that there is one super progressive justice who doesn’t care about conservative values like stare decisis AT ALL.

              I always find that funny.

        2. This is exactly right, Dilan. This applies to other areas beyond law too. And, I suppose, across political spectrums, but I notice it mostly when talking to geographically isolated conservatives. They makes statements and arguments in which they take as given “alternative facts” (i.e., things that simply are not true, at all). It becomes pointless to have a discussion because they truly have their own facts. I know this is a well known phenomenon, but it is incredibly frustrating.

          But your point about the legal aspect is quite insightful.

          And they get so used to discussing the law with each other in this internal world where all these precedents don’t exist, that it becomes natural for them to utter a sentence like “Rather, he simply assumed that decades of case law accurately interpreted Title VII.” as a criticism of a Supreme Court justice. They are so used to their internal conversations that they don’t even realize what they are saying anymore.

          Brilliant insight.

          1. Yep. One time I was in Sparta Tennessee and this dumb hick tried to argue that there couldn’t be IQ differences between races because God created us all equal. What a retard right?

            1. What a strange person you are. You thought it (witty/smart/?) to make a sarcastic non sequitur bizarrely introducing race into the discussion….okay.

          2. You ever wonder if the left is doing the same thing?

            1. Plenty on the left do the same thing. An intelligent person actively tries not to make the that mistake. It’s a natural human tendency, confirmation bias and whatnot. But it’s definitely worth pointing out and, especially, when a couple law professors pretty openly engage in that sort of thinking without even realizing it.

      2. Sarcastro : I don’t think textualism means no stare. That’s a whole separate vein of jurisprudence.

        Indeed, but it doesn’t mean imperial stare either. The role of stare is not to protect answers that are wrong textually, but to settle matters where the text is ambiguous.

        If Gorsuch had said “Because of…sex” is a ambiguous as a matter of text, so it’s best to stick with the gloss our predecessors have settled on, so long as their decsions are at least consistent with a reasonable reading of the text that would make his analysis less vulnerable to textualist criticism.

        But he didn’t say that.

        1. The role of stare is not to protect answers that are wrong textually, but to settle matters where the text is ambiguous.

          This is wrong. Stare decisis is itself a product of textualism- the Constitution specifically mentions the common law, and Article III’s “judicial power” is the power to decide cases within a precedential legal system.

          The role of stare decisis is to provide stability in the legal system. An “incorrect” (in the sense conservatives use the term), but established, relied-upon, workable decision is not worth overturning. For a great example of this, see Flood v. Kuhn, where just about everyone, liberal and conservative, thinks Holmes’ original decision in the Federal League case was stupid as a matter of textual interpretation of the Antitrust laws, and yet it wasn’t overturned and if it came up again now, it would probably be 8-1 or 9-0 in favor of not overturning the doctrine.

          1. “…the Constitution specifically mentions the common law…”

            Are you talking about common law terms of art, or a general reference to the common law? If the latter what did you have in mind?

            1. Disregard. I see from below you’re talking about the 7A.

              1. It annoys me when people who purport to be all originalist (as well as textualist) ignore that basically everyone who cared about the court system at all and who was at the constitutional convention thought we were importing the British system of common law and precedent into our system. This really isn’t seriously debated. That’s why it was so natural for the framers to drop a reference to the common law into the Seventh Amendment; they knew the federal courts would have a common law system. It was a basic assumption.

                1. I am sorry if I annoyed you. My question was not intended to annoy you.

          2. Also I think Flood v. Kuhn would get reversed. It probably won’t as a practical matter, thanks to collective bargaining agreements.

            1. It went up to SCOTUS three times over the course of almost 60 years, NToJ. And the owners won decisively each time.

              No, I think at least 8 justices think statutory stare decisis and legislative aquiescence are real things.

              1. “It went up to SCOTUS three times over the course of almost 60 years…”

                Are you talking about after Flood v. Kuhn or are you referencing Federal Baseball, Toolson, and Haywood?

                I was not aware of baseball getting a SCOTUS stamp of approval post-Flood but if I’m wrong about that, let me know. The reason I think Flood would get reversed is that it was a narrow (5-3) decision, Blackmun has already admitted it was wrong.

                1. Blackmun may think it is wrong, but I don’t think that view is shared by very many people in the field of statutory construction.

                  It’s a weird thing because there’s a lot of people who sympathize with the players on the merits. But really, if it went back up, it would be “we’ve done it this way for a century, Congress has had numerous opportunities to pass legislation reversing Federal Baseball, and has not done so, and all the parties have relied on the antitrust exemption in making television contracts, collective bargaining agreements, etc.”. And that’s just a slam dunk.

                  Flood was actually the high water mark with it’s 5-3. At the time of Flood, bear in mind, it was just before free agency and right after the civil rights movement’s heyday. So that was the best the players were ever going to do.

                  1. I don’t agree. I can see it conceivably coming up again is if the player’s union decides to take their chances in a future contentious collective bargaining negotiation, and threatens to decertify their union (as the NFL did). A lot has happened since Flood in the intermediate courts re: antitrust violations for drafts, salary caps, etc. I think the current court would not weight the scales in favor of management when all the other leagues have to negotiate on the basis of antitrust being in play, if a CBA is not entered.

                    1. It has zero to do with favoring management. Nobody in Flood was carrying water for management either. It’s about not opening statutory precedents to endless relitigation.

        2. Indeed, but it doesn’t mean imperial stare either. The role of stare is not to protect answers that are wrong textually, but to settle matters where the text is ambiguous.

          No, that’s just not right. There are reasons to reject stare decisis in a given case, but “the original decision was wrong” isn’t one of them. That’s necessary but not sufficient. (To be clear, one can reject a prior decision solely because it’s wrong, but in that case one isn’t doing stare decisis.)

          1. I think there’s a distinction between “wrong” and “egregiously wrong”. Weight of time smooths the latter to the former though.

    2. I don’t think this is a fair reading of the piece. They walk through the instances in which they claim Justice Gorsuch relied on a prior case that got the meaning of “discriminate against” or “because of” wrong. They argue that in each case, the prior opinion either analyzed the term in a different context (e.g. in connection with a retaliation claim) or relied on an earlier opinion that did so. In other words, their argument is that those precedents are distinguishable. Maybe they’re right and maybe they’re wrong, but they’re not ignoring stare decisis.

      1. That’s not a fair reading of the sentence “Rather, he simply assumed that decades of case law accurately interpreted Title VII.”

        That sentence says that Gorsuch’s mistake was assuming that the prior cases were rightly decided. Not failing to distinguish prior caselaw. If their complaint were Gorsuch’s supposed failure to distinguish prior caselaw, the piece would have said “Rather, he misinterpreted the reach of prior Title VII cases.” or something similar.

        There’s really no interpreting that sentence other than as saying that Gorsuch’s mistake, as the frat boys in Animal House might have said, was trusting the Court’s prior rulings.

        1. “There’s really no interpreting that sentence other than as saying that Gorsuch’s mistake, as the frat boys in Animal House might have said, was trusting the Court’s prior rulings.”

          Sure there is. Gorsuch didn’t frame his opinion as carrying on the expansion of Title VII as part of a common law tradition (which probably would have been very easy to do). He claimed he was doing a textualist analysis of what Title VII meant in 1964. Those are two different things.

          Do you believe that all of the decisions that interpreted Title VII between 1964 and 2020 were textualist decisions? I would be surprised if they were, because I don’t think textualism was the primary way, much less the only way, that justices have resolved statutory interpretation cases during that entire time period. Kagan said “we are all textualists now,” not “we’ve all always been textualists.” If a decision was not based on a textualist analysis, how is its holding relevant to a later textualist analysis (regardless of whether its still valid under stare decisis)?

          1. Sure there is. Gorsuch didn’t frame his opinion as carrying on the expansion of Title VII as part of a common law tradition (which probably would have been very easy to do). He claimed he was doing a textualist analysis of what Title VII meant in 1964.

            This is quite false. He said his result was both consistent with the text of the statute AND followed from the Court’s precedent.

            Do you believe that all of the decisions that interpreted Title VII between 1964 and 2020 were textualist decisions?

            I don’t really care. Nothing in the Constitution provides that only textual decisions of the Supreme Court are operative. Rather, it says that the Supreme Court stands apart from “inferior” courts, i.e., that lower courts have to follow what the Supreme Court says.

            If a decision was not based on a textualist analysis, how is its holding relevant to a later textualist analysis (regardless of whether its still valid under stare decisis)?

            Because the text of the Constitution requires we follow prior Supreme Court decisions, and also because we don’t operate in a pure textualist system with no rule of stare decisis. We operate in a system where stare decisis is mandated by the Constitution.

            1. Here’s how Gorsuch actually described his approach:

              “With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire orto 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.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.”

              Notice that “confirming our work against this Court’s precedents” comes at the end of the process.

              “I don’t really care. Nothing in the Constitution provides that only textual decisions of the Supreme Court are operative. Rather, it says that the Supreme Court stands apart from “inferior” courts, i.e., that lower courts have to follow what the Supreme Court says.”

              That is certainly true, although what that has to do with criticizing the purported textualist analysis in a Supreme Court decision is entirely unclear.

              “Because the text of the Constitution requires we follow prior Supreme Court decisions, and also because we don’t operate in a pure textualist system with no rule of stare decisis. We operate in a system where stare decisis is mandated by the Constitution.”

              Where is stare decisis mandated by the Constitution? More importantly, where in the Constitution does it say that interpretation of the Constitution is subject to the vagaries of the common law system? There was no common law tradition of subjecting a written constitution to the development through common law because England didn’t, and still doesn’t, have a written constitution.

              1. The Constitution sets up a common law system (read the Seventh Amendment) and the framers clearly understood to be doing so when they created the “judicial power” of Article III.

                England didn’t have a constitution, but it did have statutes, and the rules of statutory interpretation came directly from the English courts. The same rules apply to constitutional interpretation.

                As for this:

                begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents

                This is exactly what I said Gorsuch did. He started with the text, but he took into account the Court’s precedents. As he is required to do under a common law system with stare decisis. He did his job, and Prof. Blackman is arguing he shouldn’t have.

                1. “This is exactly what I said Gorsuch did. He started with the text, but he took into account the Court’s precedents. ”

                  That’s not what he says he’s doing. He lays out a three-step process: (1) orient ourselves in 1964 and examine the key statutory terms; (2) assess the impact of those terms on the present case; and (3) compare the results to existing precedents to confirm that it’s consistent.

                  1. I agree Gorsuch was confident, perhaps too confident (Blackman and Barnett provide a plausible alternative, that he read the text properly independent of precedent. But just to be sure, he looked at how prior decisions read the same text. And, they all agreed with his interpretation.

                    Blackman and Barnett (and Alito in footnote 22) also are confident that Gorsuch has read the text incorrectly. But, what would they do with the precedent? They don’t tell us. Thus, Gorsuch has the better case, even if he incorrectly believes the text is unambiguous without looking at precedent.

                    1. “But, what would they do with the precedent? They don’t tell us.”

                      As far as I know, neither does Gorsuch. By waiting to look at existing precedents until the end, his professed way of analyzing the case is primed for conflict between the textualist analysis and existing precedents.

                    2. In the present case, Gorsuch leaves the precedents alone. We can all wait for another day to see how Gorsuch handles precedent that disagrees with his interpretation.

                    3. Because it’s a half-way textualist analysis.

                    4. Because it’s a half-way textualist analysis.

                      It seems you answered a question of mine, but I don;t think I asked one.

                    5. I mean, we’re at a post talking about Gorsuch’s half-way textualist analysis, in a thread criticizing the author’s claim. It seemed relevant to point out that the reason Gorsuch avoided the flaw you identified with Blackman and Barnett’s analysis is exactly what they accused him of.

                    6. The reason Gorsuch avoided the flaw is precedent agreed with his interpretation. We can only speculate on what he would have done had he been in Blackman’s shoes (and we still don’t know how Blackman deals with being in Blackman’s shoes since he was silent on what to do with the precedents).

        2. That sentence says that Gorsuch’s mistake was assuming that the prior cases were rightly decided. Not failing to distinguish prior caselaw. If their complaint were Gorsuch’s supposed failure to distinguish prior caselaw, the piece would have said “Rather, he misinterpreted the reach of prior Title VII cases.” or something similar.

          There’s really no interpreting that sentence other than as saying that Gorsuch’s mistake, as the frat boys in Animal House might have said, was trusting the Court’s prior rulings.

          No, they say that Gorsuch relied on precedent that was not on point, and on incomplete analysis:

          To define “discriminate against,” Justice Gorsuch relied on a 2006 decision by Justice Breyer, which stated “no one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.” However, Justice Breyer was interpreting a different provision of Title VII that governed retaliation. Moreover, Justice Breyer made no effort to understand how “discriminate against” was understood in 1964. Instead, he relied on a 1989 decision by Justice William Brennan. But this decision did not turn on the meaning of “discriminate against.” Rather, Justice Brennan considered the phrase “because of.” Justice Gorsuch’s research trail slammed into a brick wall. Yet despite this incomplete analysis…

          Also, the 1989 decision referred to was Price Waterhouse, a plurality.

          1. Part of the problem is that the authors know absolutely nothing about the caselaw in Title VII, and …

            I mean c’mon. “Justice Gorsuch’s research trail slammed into a brick wall.”

            That’s not, at all, what is going on. This has to be some of the shoddiest, most results-oriented and ignorant analysis I’ve read here in a long time.

            Prof. Barnett should be ashamed that he came within 1000 yards of this.

            1. And again, I don’t think people should be rewriting the text of what Blackman and Barnett said. (Oh, the ironies.)

              They said Gorsuch made a mistake by assuming the validity of prior precedents. That’s what they said. If people want to defend them by saying they didn’t mean what they said…. well, as I said, oh, the ironies.

      2. “I don’t think this is a fair reading of the piece. ”

        Just going to point out- two law professors, with NO PRIOR EXPERIENCE IN TITLE VII, “argue that in each case, the prior opinion” {is wrong.}

        I mean, there is chutzpah, and then there is this. If you have to distinguish an entire body of law that you have no familiarity with, you might as well just ignore it, because you look a lot less foolish.

  5. The logic of your article is flawed, because it never asks how you could treat men differently than women without bias or prejudice.

    I mean, let’s take the toy example again: a man and a woman are hired, and both prefer to date men. If you fire the man, but not the woman, what possible motive could their be except bias or prejudice? Literally the only difference is one is a man and one is a woman – you’re necessarily prejudiced against the man because he doesn’t adhere to how you expect a man to be, that is, because of his sex.

    I await any plausible argument that there could be a motive here that doesn’t reflect bias or prejudice.

    1. The logic of your article is flawed, because it never asks how you could treat men differently than women without bias or prejudice.

      The point they are making is that Gorsuch, when analyzing the meaning of “because of,” used a specialized technical meaning – that it has a “but for” meaning. Gorsuch reasons, “the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”

      According to Blackman and Barnett, Gorsuch used this “but for” meaning instead of the ordinary meaning of the phrase “discriminate against because of sex,” which involves prejudice or bias against a person because of his or her sex. They describe an argument Ginsburg made in 1973, when she was an ACLU attorney. She contended in that case that the law was premised on a stereotype.

      During oral argument, she told the all-male Court that the government “assumes that all women are preoccupied with home and children.” Such prejudices, she explained, “help keep [a] woman in her place, a place inferior to that occupied by men in our society.” That bias and prejudice formed the core of sex discrimination.

      This is the prejudice or bias that was targeted by the ordinary meaning of “discriminate against because of sex,” according to Blackman and Barnett, and there was no such prejudice or bias present here. They say that the “but for” approach substitutes a test in which the affected employee’s sex is a but-for cause of his discharge but this does not necessarily involve prejudice or bias of the kind described above. The employee was not fired because of prejudice or bias against women, to “help keep [a] woman in her place, a place inferior to that occupied by men in our society,” which is the ordinary meaning of “discriminate against because of sex.”

      1. Swood,

        That is wholly unconvincing. You just restate the question Gorsuch answered.

        the phrase “discriminate against because of sex,” which involves prejudice or bias against a person because of his or her sex.

        Which his what happened in this case, or as the hypothetical, if a man if fired for dating a man, but a woman is not fired for dating a man, the rules of the English language pretty much establish that there was prejudice or bias against that man because of his sex. It was prejudice or bias. And his sex was the determining factor.

        Ginsburg’s argument applies perfectly to the Bostock or man-dating-man situations. The belief that people born XY and with a penis don’t wear women’s clothes, or date men, is a sex stereotype meant to keep men in their place (and women in their place). That’s what discrimination is, it is assuming only one or the other can do something based on stereotypes and here, sex-based stereotypes that are meant to perpetuate sex roles.

        What I think you and Barnett and other conservatives thinks, but don’t really say, is that it only counts as sex discrimination if you have a dislike of one sex or the other, if you view one sex, as a whole, inferior to the other. But that is, frankly, not a good standard.

        Again, male on male harassment is okay because the man doing the harassing doesn’t view men as inferior generally and isn’t trying to perpetuate male negative stereotypes? In fact, the harasser is subverting those stereotypes. The decades of case law that Barnett assumes were wrongly decided actually correctly rejected that somewhat silly reading of the statute.

        1. The thing is, if the statute is interpreted as only banning decisions based on animus as Swood contends they are, then the conservative movement’s long line of anti-affirmative action/”reverse discrimnination” decisions would be undermined. Those cases turn on whether the CRA bans discriminatory acts or only acts based on prejudice. Liberals take the latter position, and conservatives take the former.

          Are the dissenting judges in Bostock prepared to jettison that entire set of cases?

          1. Bingo. Good to see you, DMN.

            Almost like someone else understand the case law and the statute.

            I mean, if this is as Swood says it is, then it is exceptionally hard to square Alito in Ricci with Alito in this case.

          2. The thing is, if the statute is interpreted as only banning decisions based on animus as Swood contends they are…

            The terms I used were “prejudice or bias.” According to the dictionary, “animus” adds to this an “often spiteful or malevolent ill will.”

            1. Swood,

              You still don’t answer whether male on male sexual harassment would be prohibited under Title VII, or does the answer to the question vary depending on the subjective bias or prejudice of the person doing the harassing? Obviously, if the person male was harassing another male and thought males were inferior, then it fits, but if he just wanted to bully, etc. this particular male it would be oaky?

              The rubric you are proposing doesn’t make a lot of sense, really. It isn’t supported by the text, isn’t supported by precedent, and would lead to absurd outcomes as two identical fact patterns (but for the harasser’s assumed mindset) would have different outcomes. Either sexual favors for a promotion violates Title VII or it doesn’t.

          3. Affirmative action is unconstitutional, not a violation of the CRA. There is no need to look at the motivations of the people doing it.

        2. That is wholly unconvincing. You just restate the question Gorsuch answered.

          I was just trying to explain the argument that Blackman and Barnett were making. Did I fail to do so, or are you disagreeing with their argument and attributing it to me?

          if a man if fired for dating a man, but a woman is not fired for dating a man, the rules of the English language pretty much establish that there was prejudice or bias against that man because of his sex. It was prejudice or bias. And his sex was the determining factor.

          According to Blackman and Barnett, “all nine Justices agreed — at least for purposes of this case — that “sex” referred to the “biological distinctions between male and female.”” Also according to Blackman and Barnett, the ordinary meaning of the phrase “discriminate against because of sex,” involves prejudice or bias against a person because of his or her sex, as described by Ginsburg: “help keep [a] woman in her place, a place inferior to that occupied by men in our society.” But this was not the prejudice or bias that was at work here. Consequently, they say, this did not involve being discriminated against because of sex, according to the ordinary meaning of that term. Furthermore, according to Blackman and Barnett, using Gorsuch’s test, “it is not necessary to show that the employer was homophobic; the mere fact that sex served as an ingredient in the termination is sufficient.”

          What I think you and Barnett and other conservatives thinks, but don’t really say, is that it only counts as sex discrimination if you have a dislike of one sex or the other, if you view one sex, as a whole, inferior to the other. But that is, frankly, not a good standard. …male on male harassment is okay because the man doing the harassing doesn’t view men as inferior generally

          “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Male on male harassment is also prohibited. See Oncale.

      2. I think Gorsuch’s opinion is wrong on the law, but one problem with revising “but for” on textualism grounds is that subsequent action by Congress suggests that “but for” is correct. The Court originally used “but for”. In response, Congress amended parts of the CRA to actually have a more lenient standard (for the plaintiff). But it didn’t do anything to “but for” for the remainder. If they had intended to rebuke “but for” Congress would not have enacted a more relaxed standard for any of it; they would have narrowed the standard to something more than but for causation.

        Original intent is very complicated and this case raises major issues with interpretation of statutes, generally. Where Congress is piecemeal amending a statute, you’re not only having to discern intent at one point, but applying intent across several iterations, some of which are only partially related.

        Textualism failed here because it reached a result that everyone agrees cannot have been intended (either by the original statute or any amendment). Textualism is only useful as an interpretive method where the original intent is in doubt, and at least for this application, I don’t sense much disagreement about original intent.

        1. Meh. There’s original intent as to goals, and there’s original intent as to what the rule actually is. There’s nothing crazy about the rule-as-intended exceeding (or falling short of the goal). Shoddy logic and lack of imagination guarantee it. Hell, many taxation cases are guaranteed to produce results directly opposite to the stated goals.

          We still follow the rule as legislated (barring absurdity) rather than the vague and ephemeral notion of a specific policy goal.

          1. The problem here is that everybody (including the majority) agrees about what the specific policy goal was.

      3. I’m sorry, how is this a response to what you quote of me? How was there not bias here? If you treat men who date women differently than women who date women, it’s obviously rooted in prejudice because of sex.

        That men shouldn’t date men is exactly the same as Ginsburg’s argument – it’s based on a stereotype (in this case a stereotype about proper male behavior), and discriminates based on that stereotype.

        They need to demonstrate that you can treat a man differently than a woman for the same behavior (dating men) in a way that *doesn’t involve prejudice* for their argument to hold any water. Blackman’s argument that there’s ‘no prejudice here’ is (1) never explicitly made, and (2) unpersuasive.

    2. The short version is that they want to separate sexuality from biological sex. You can’t fire a woman because you hate women, but you can fire because you hate lesbians. That’s their argument.

      1. Is that the ordinary meaning of “discriminate because of sex”? According to Blackman and Barnett,

        all nine Justices agreed — at least for purposes of this case — that “sex” referred to the “biological distinctions between male and female.”

      2. Yes, but he doesn’t make a theoretical argument to justify that. It’s still prejudice because of sex, because it involves stereotypes about what a woman should be like, and bias because of those stereotypes.

    3. There is bias or prejudice, but it’s not against any sex. It’s against a certain “sexual orientation” or against certain behaviors, or even just beliefs.

      “both prefer to date men”

      I’m not sure the case turns on this, but it should be noted that you have committed a sleight of hand here. What is it that you mean by “date”? I don’t think it’s having lunch together, getting drinks at a night club, or taking walks on the beach. So when you say “both prefer to date men” you are glossing over the fact that a man and a man, or a woman and a woman, do not and cannot do the same thing that a man and a woman do. Gorsuch made the same logical gloss-over, as he wrote the “but-for test directs us to change one thing at a time and see if the outcome changes,” but it seems he did not change only one thing.

      Of course, I think that people’s private lives should be their own business and they shouldn’t be fired over what they choose to do on their own time or what the color of their skin is. But the government generally shouldn’t be in the business of policing discrimination, and the courts certainly shouldn’t be in the business of updating legislation in a way that changes its plain, ordinary, and undisputed original meaning.

      1. But the government generally shouldn’t be in the business of policing discrimination

        If you have this belief, you shouldn’t be interpreting Title VII.

        The ENTIRE FRICKING PREMISE of Title VII is that the government should be in the business of policing discrimination. That’s what the statute does! It polices discrimination.

        And that’s super-relevant to whether Gorsuch is right or not. If you harbor a desire to sabotage the statute, you aren’t going to be an honest broker as to what the thing means. We saw this with the Moops case on Obamacare too.

        1. Wow, this is fascinating. So no lawyer or judge is allowed to interpret a law unless they (a) not only agree with the politics and policy of that law but (b) are willing to put their thumb on the scale to further politics and policy that are loosely aligned with that law?

          Do you want to reconsider or clarify that comment?

          1. You misstated it. What I am saying is that the opinion “we generally shouldn’t be in the business of policing discrimination” is as relevant to Title VII as the opinion “we should have a monarchy” is to interpreting the Separation of Powers.

            Society made a decision that we should be in the business of policing discrimination. If you are a dissenter from that, you can go ahead and dissent, but you shouldn’t be in the conversation as to what statutes that police discrimination mean. You really have no say, because you think the whole project was wrong. Just like we wouldn’t listen to a British monarchist’s opinion of how our Separation of Powers work.

            1. No, it sounds like I stated it perfectly.

              “you shouldn’t be in the conversation”

              “You really have no say”

              So by this logic, anyone who think that perhaps the right of the people to keep and bear arms ought to be infringed at least here and there, is disqualified from interpreting the 2nd amendment. The number of recusals you will be arguing for is staggering – half the judiciary or more on many questions.

              1. You shouldn’t be in the conversation.

                If I am interpreting the Fourteenth Amendment, I don’t solicit the views of Klan members. And if I am interpreting the Civil Rights Act, I don’t solicit the views of the 5 percent of the population who thinks that there shouldn’t be a Civil Rights Act.

                As for your RKBA example, if there are people who believe the Second Amendment should be repealed and there should be no private ownership of handguns at all, no, I actually don’t think they would be the best interlocutors about what the Second Amendment actually means.

                1. If nobody can interpret a law unless they agree with the law or the result of its application, then there can be no rule of law. The logical content of a text is separate from the identities of the speaker and the reader.

                  As for selecting the “best interlocutors,” I think it’s pretty uncontroversial to say that some stated viewpoints or opinions may be relevant to whether someone should be a judge, for example. But your overall thesis here is fundamentally contrary to the concepts of blind justice and the rule of law.

                  I offered my opinion in order to have a genuine conversation. It has nothing to do with my substantive point regarding the legal issue here, which you have not engaged, instead offering a nonsensical distraction.

                  I didn’t say that the CRA shouldn’t exist, but that in general the government should not police private actions and should instead allow liberty and freedom of association, especially when there is not an acute case of widespread discrimination and deprivation of services. In the long run, this is better. Many libertarian writers have commented on antidiscrimination laws and the poster NToJ has done so better than I can in recent comment threads.

                  1. If nobody can interpret a law unless they agree with the law or the result of its application

                    Again, that’s not what I said.

                    What I did say should be no more controversial than me saying, that as a non-Catholic agnostic, I am not the best authority on the interpretation of Pope Francis edicts.

      2. So when you say “both prefer to date men” you are glossing over the fact that a man and a man, or a woman and a woman, do not and cannot do the same thing that a man and a woman do.

        By my count, there are very few specific sexual acts that hetero couples can perform and same-sexers can’t or vice-versa. (Some others are possible for each, but same-sex couples have no interest in doing them.) As for the rest, you need to get out more.

        1. Really ?

          Same sexers can do old fashioned penis-into-vagina intercourse ? With attendant seminal flow and babies and stuff? What sort of contraceptives to same-sexers typically use to minimise pregnancy risk ?

          Maybe I really do need to get out more.

          Or did you mean “count” strictly literally, where you count old fashioned penis-into-vagina intercourse as one, and toesucking as ten ?

          1. I’d explain to you what you don’t seem to know about sex, but this is a family blog.

            1. In other words, you got nothing.

      3. There’s plenty of things that a man and a man can do together, or a woman and a woman can do together, that a man and a woman can do together. Your concept of what a couple might do in the privacy of their bedroom seems remarkably limited.

        But from the perspective of an employer, none of that matters. They’re not a voyeur into their employees sex lives (unless said sex lives are happening at work, and, well, that seems to be reasonable grounds for firing regardless of choice of partner). All they might reasonably know is their employees preferred sex for dating purposes. I mean, can you imagine an employer saying ‘it was fine when they were meeting to go out to dinner and kissing goodnight, but the moment they engaged in {specific sex act in the privacy of employee’s home}, then i had to fire him!’

    4. ” Literally the only difference is one is a man and one is a woman”

      Only if you pretend that sexual orientation isn’t a thing. One is a gay man, and the other is a straight woman. And many, particularly on the left, have been very adamant that sexual orientation is, in fact, an inherent characteristic. Under that scenario, the relevant comparison for a gay man is either a straight man or a gay woman.

      Let’s take another example. Say you are straight, and your business partner is gay. You have four employees, two men and two women. It turns out that one of the men and one of the women are bisexual, which you and your business partner think is icky, so you fire them. That’s certainly sexual orientation discrimination. Now explain how that is also plain sex discrimination.

      1. It has been remarked that Justice Gorsuch’s framework may not work for discrimination against bisexuals. That doesn’t mean it doesn’t work with respect to gays or trans people, however.

        1. No, but that’s a sign of a bad framework. Nothing required Gorsuch to adopt the framework he did, and the results of the case depend on the framework he chose. That he chose a framework that yields different results based on the type of sexual orientation discrimination, when other available frameworks don’t, is the sign that he chose the wrong framework.

          1. It’s not a sign of a bad framework. Or, to put it another way, it’s not any worse of a framework than one that would say that sex stereotyping or male on male harassment can’t be sex discrimination.

            You try to rationalize statutory text the best you can. It’s not going to be perfect. But Gorsuch’s approach makes more sense than the dissent’s, especially given the Court’s prior Title VII caselaw.

            1. “But Gorsuch’s approach makes more sense than the dissent’s”

              No it doesn’t, because Alito’s framing treats discrimination against different sexual orientations the same whereas Gorsuch’s doesn’t.

              “especially given the Court’s prior Title VII caselaw.”

              Which has nothing to do with Gorsuch’s purported textual analysis of the original public meaning in 1964. I have little doubt that Bostock would have been easy to justify as a further extension of existing Title VII jurisprudence, but that’s not what Gorsuch claimed he was doing in the bulk of his opinion.

          2. Nah, it works for bisexuals as well.

            At any given time they’re with on or the other sex. Same analysis applies.

            The framing is not arbitrary; it’s from the text of the CRA! Start there, and this is the framing that falls out.
            You’re starting somewhere external, which is telling.

            Y’all wanted judicial umpires, don’t cry over it now!

            1. God you are a fucking moron.

              “At any given time they’re with on or the other sex.”

              This is certainly not true. And it’s certainly not true that that is the reason they were fired.

              1. Sorry, I didn’t realize it was you. I try not to comment to you because you have a weird thing with me.

                But anyhow, they are fired for desiring not this one sex exclusively. How is that not caused by sex?

                1. Is there “this one sex” in jph’s hypothetical where you had one gay and one straight boss? The gay boss doesn’t like you having sex with a person of the opposite sex, and the straight boss doesn’t like you having sex with a person of the same sex. But-for being the sex you are … I think you still would have been fired.

                  1. “The gay boss doesn’t like you having sex with a person of the opposite sex, and the straight boss doesn’t like you having sex with a person of the same sex.”

                    It’s not clear, but I more had in mind that both bosses are okay with both gays and straights of either sex. They just don’t like bisexuals.

                2. It’s not weird to think you are a fucking moron when you repeatedly demonstrate that you are. Like now. You’ve made two utterly inane “arguments” in a row.

                  “they are fired for desiring not this one sex exclusively”

                  Which one sex would that be?

                  1. Doesn’t matter.

                    1. Three utterly inane “arguments” in a row! Can you do four? I believe in you. Give it another go.

                    2. Unengaged dickery.

                      Well, carry on.

                    3. See, you never fail to disappoint me. I had faith in you, and you didn’t even try.

            2. Polyamorous bisexuals exist.

              1. Also there really is such a thing as discrimination against bisexuals as bisexuals — people that are fine with both gays and straights, but think that bisexuals are greedy sluts who can’t make up their minds. And if they consider that the same between men and women there is no discrimination based on sex. The but-for test fails.

        2. It also fails with a variety of other sexual orientations, indeed, the only one his framework works for is homosexuality. Pansexuality, asexuality, polyamory, etc etc etc all are unaddressed.

      2. Gorsuch’s whole analysis doesn’t care about sexual orientation at all. That’s kind of the point. He doesn’t read ‘sexual orientation’ into the law, he says it’s discrimination based on sex, regardless of the sexual orientation of the people.

        And Gorsuch’s analysis wouldn’t protect the bisexuals.

        1. “He doesn’t read ‘sexual orientation’ into the law, he says it’s discrimination based on sex, regardless of the sexual orientation of the people.”

          Because he chooses a framing deliberately designed to achieve that result. A framing that isn’t required by textualism, a framing that doesn’t match how ordinary people describe what happened, a framing that treats homosexuality as if it were not an inherent characteristic, and a framing that can’t handle other kinds of sexual orientation discrimination even though that was part of the question presented. Those are all reasons to reject his framing.

          “And Gorsuch’s analysis wouldn’t protect the bisexuals.”

          Which is one of the reasons its a bad framing. It’s silly to say that it’s okay to discriminate against bisexuals because when you discriminate against bisexuals you are really discriminating based on their sexual orientation, but it’s not okay to discriminate against gays because when you discriminate against gays you are really discriminating against them based on their sex.

          1. he chooses a framing deliberately designed to achieve that result

            Did you just argue Gorsuch was motivated by the result as if this is his preferred policy outcome?

            1. Not really. I’m not sure why he chose the framing. But he chose the plaintiffs’ framing, which was deliberately designed to achieve that result (and I’m not criticizing them for it–that’s what they are supposed to do).

              Of course, I wouldn’t be at all surprised if this was his preferred policy outcome. And when there are different ways to frame the question that lead to different results, it’s easy for policy considerations to come into play. Do you believe it wasn’t and that he was forced into this result based purely on the textual analysis of Title VII?

              1. Given Gorsuch’s dissent in Pavan and his concurrence in Masterpiece Cakeshop, it would greatly surprise me if the result in Bostock was his preferred outcome.

          2. idk, it reads to me like he chose the framing the fit the text as written, no matter where it led him. He didn’t prefer this framing, he just couldn’t escape it.

            It’s really not that hostile a framing for conservatives. It explicitly rejects any notion of ‘sexual orientation’ as something the law addresses. It treats sexual orientation only insofar as it relates to stereotypes we have of appropriate male and female behavior, and holds (as is appropriate given other precedent) that discriminating based on the expectation of those stereotypes is forbidden. It rejects the reality of transsexualism, and treats them as their biological sex, it just goes on to say that you can’t hold their desire to dress or act like the other gender against them, because that’s prejudice rooted in stereotyping based on sex. ie, it treats all of this as matters related to treatment based on biological sex. And it got the liberals on the court to sign onto that as a matter of law. Conservatives should take that for the win it is, even if you don’t like the specific outcome.

            I’m inclined to believe Gorsuch followed where the law led him, but if there’s a deeper agenda here, then it would seem like Gorsuch is playing a longer game in the culture war, and sacrificing a pawn now for an important concession on more fundamental matters.

            1. “It treats sexual orientation only insofar as it relates to stereotypes we have of appropriate male and female behavior, and holds (as is appropriate given other precedent) that discriminating based on the expectation of those stereotypes is forbidden.”

              Except you’ve already said “Gorsuch’s analysis wouldn’t protect the bisexuals.” Why not? Why is it okay to discriminate based on those expectations?

              And it’s absurd to say that discrimination against a straight person for being straight is based on the stereotypes “we” have about the appropriate behavior for men or women.

              “You get to change one thing – the sex of the employee. You don’t get to change who the employee is dating.”

              First, in your framing nobody can change just one thing because if you change the sex of the employee without changing the orientation of employee as well. More importantly, the question presented was whether sexual orientation discrimination was sex discrimination under Title VII. If you have to change the sexual orientation of the employee to make it sex discrimination, how is that still sexual orientation discrimination? If you were really trying to determine whether sexual orientation discrimination was sex discrimination then you would need to keep the employee’s sexual orientation the same.

              There is a framing where the only thing that changes is the sex of the employee. Suppose Male Employee comes up to Boss and says, “Boss, I’m a homosexual.” Then Boss fires Male Employee. Male Employee is fired for telling Boss that he’s a homosexual, not for dating anyone. Now change Male Employee to Female Employee. If Boss would still fire her, where’s the sex discrimination?

              1. You’re asking a moral question, not a legal one. It’s not okay to discriminate against bisexuals, but the law doesn’t necessarily say anything about it. (As i don’t think that question was even briefed, I await further legal analysis).

                Second, Gorsuch didn’t find that sexual orientation discrimination was itself a special protected group. He found that sexual orientation discrimination is necessarily sex discrimination.

                Third, consider your example with a woman wearing pants. (Pretend its the 1950s and this is considered inappropriate). If you change the gender, do you have to put the man in female-appropriate clothes? Or do you compare a woman in pants to a man in pants? Transvestism could be considered ‘innate’ too, but no reasonable person would do anything but compare a man in pants to a woman in pants.

                Fourth: On framing. Still sex discrimination because it assumes stereotypes about proper behavior *because of* sex. Why is the boss against ‘homosexuality’? Because he objects to men dating men and women dating women. You can’t just invoke a term to ignore the underlying truth here. Otherwise, you could justify firing women who wear pants because you object to transvestism. You’d be laughed out of court.

                1. “You’re asking a moral question, not a legal one.”

                  No, I’m really not. I’m criticizing Gorsuch’s legal analysis.

                  “He found that sexual orientation discrimination is necessarily sex discrimination.”

                  No, he really didn’t. Because discrimination against bisexuals is sexual orientation discrimination and you’ve repeatedly said that’s not sex discrimination. Which is one of the reasons his framing is bad.

                  “Transvestism could be considered ‘innate’ too, but no reasonable person would do anything but compare a man in pants to a woman in pants.”

                  First, a woman wearing pants isn’t a transvestite. And if we are talking about actual transvestites, then yes, when determining whether that is actually sex discrimination the relevant comparison would be between male and female transvestites.

                  “Still sex discrimination because it assumes stereotypes about proper behavior *because of* sex.”

                  Not under Gorsuch’s framing. The man and woman are treated exactly the same.

                  “Why is the boss against ‘homosexuality’? Because he objects to men dating men and women dating women.”

                  Who knows, who cares. What if it’s because he objects to people having sex with people of their own sex? What if its because he objects to all non-procreative sex?

                  “You can’t just invoke a term to ignore the underlying truth here.”

                  I’m not the one ignoring the underlying truth.

                  1. When women wearing pants was objectionable, a woman wearing pants *was* transvestism. Yes, decades after we forbid discriminating on the basis of sex, and women started routinely wearing traditionally male garments, it’s no longer objectionable or weird. So assume the comparison is happening in like the 1950s, when women weren’t supposed to wear pants.

                    And no, the comparison isn’t a male transvestite vs. a female transvestite. It’s a comparison of the specific act or acts. If it’s a man in a skirt, then the comparison is to a woman in a skirt, because that’s the specific act at issue. You can’t remove to generality – generalities will always fail the ‘no discrimination because of sex’ test *as applied* to a particular instance, because when you fire the man in a skirt, you’re not firing all transvestites, you’re firing that man because he wore a skirt, conduct for which you would not have fired a woman.

                    What ifs/
                    How does someone being a homosexual necessarily entail sex? He or she could be homosexual and celibate. He or she could just not have met the right person. Maybe he’s in a relationship and waiting for marriage? All the employer knows is the employee is interested in people of the same gender, or at the worst actively dating one. No sex needs to necessarily have happened.

                    Does he insist on the intimate details of his heterosexual employees too? What if the straight male employee enjoys non-procreative sex, possibly even to the exclusion of procreative sex? What if, shocker, his female employees are on birth control (and thus, by definition, no sex is procreative)?

                    Also, all those hypotheticals? They’re *still discrimination on the basis of sex* as applied to any individual. If he objects to people having sex with their own sex, that means he objects to a man having sex with a man, but not a woman having sex with a man. That’s explicitly discrimination on the basis of sex. So even if we assume your hypotheticals are true and relevant, they *still* fail.

                    If you won’t deal with the individual situation, rather than generalities, you’re both wrong as a matter of law and as a matter of logic. People don’t hire or fire classes of people, and the law protects *individuals*.

                    1. “When women wearing pants was objectionable, a woman wearing pants *was* transvestism.”

                      No it wasn’t.

                      “If it’s a man in a skirt, then the comparison is to a woman in a skirt, because that’s the specific act at issue.”

                      This is one of the reasons this analogy fails. The woman is fired for wearing pants. The gay man isn’t fired for doing anything. He’s fired for what he is.

                      “How does someone being a homosexual necessarily entail sex?”

                      It doesn’t. The framing Gorsuch and you have adopted says that it does, which is yet another flaw in the framing. Otherwise there’s no other way to compare the gay man to the straight woman. This is what I asked:

                      “Suppose Male Employee comes up to Boss and says, “Boss, I’m a homosexual.” Then Boss fires Male Employee. Male Employee is fired for telling Boss that he’s a homosexual, not for dating anyone. Now change Male Employee to Female Employee. If Boss would still fire her, where’s the sex discrimination?”

                      There’s no sex at all in that scenario.

                      “If he objects to people having sex with their own sex, that means he objects to a man having sex with a man, but not a woman having sex with a man. That’s explicitly discrimination on the basis of sex.”

                      No it isn’t. He objects to people having sex with other people of their same sex. That’s discrimination based on sexual orientation.

                      “If you won’t deal with the individual situation”

                      I am dealing with the individual situation. I’m just not the one trying to twist myself in a pretzel trying to turn sexual orientation discrimination into sex discrimination.

                      And you still haven’t addressed how sexual orientation discrimination is necessarily sex discrimination if discrimination against bisexuals isn’t.

                    2. You’re not dealing with the individual situation. You keep removing to abstraction by saying things like: “He objects to people having sex with other people of their same sex.”

                      What does that sentence mean in the specific context of an individual male employee? It means that male employee having sex with a man. If he wouldn’t fire a woman for having sex with a man, then it’s discrimination on the basis of his sex to fire a male employee for doing so. You can’t get around this by removing to abstraction, because it has to be *constitutional as applied*, and in any specific situation the employee is a particular sex, and the conduct in question involves sex with someone of that sex.

                    3. “You’re not dealing with the individual situation.”

                      No, I’m dealing with the individual situation. You, and Gorsuch, keep trying to define the situation as something other than it is. Virtually nobody in the world would have described what happened to the gay plaintiffs as sex discrimination until the lawyers got involved. That’s a bad thing.

                      “You keep removing to abstraction by saying things like: “He objects to people having sex with other people of their same sex.” What does that sentence mean in the specific context of an individual male employee? It means that male employee having sex with a man.”

                      No it doesn’t. Gorsuch’s framing relies on the employee having sex (or at least dating) with another man. Mine doesn’t. In the scenario I described the boss only knows one thing about the employee, that the employee is gay. The boss has no idea what the employee has actually done.

                      “If he wouldn’t fire a woman for having sex with a man, then it’s discrimination on the basis of his sex to fire a male employee for doing so.”

                      No, that’s discrimination based on sexual orientation. It’s discrimination based on sex if he would fire a gay man but not a gay women. I guess for Gorsuch that’s double secret sex discrimination.

                      “the conduct in question involves sex with someone of that sex.”

                      The conduct in question is something the plaintiffs made up to work with their framing. In reality, I’m willing to bet that the employees were fired for who they were, not what they did. You can keep insisting sexual orientation isn’t a real thing if you want, but I’m not going to agree.

                      And you still haven’t addressed how sexual orientation discrimination is necessarily sex discrimination if discrimination against bisexuals isn’t.

    5. This isn’t how the statue treats discrimination though. You are making the mistake one makes in math where one forgets to reverse all of the signs.

      How else would you protect against gender discrimination but by comparing the actions of an employer vis a vis one male employee and one female employee. Otherwise you could simply say I won’t hire employees that menstruate look I’ll hire straight men or gay men but no one who menstruates. This treatment passes your hypothetical above. It’s what happens when you introduce a confounding variable into a strict comparative analysis of male and female employees. that’s why it only makes sense to conduct sex discrimination analysis from the perspective of one male and female hypothetical employee. Both the male or female employee can date members of the opposite sex. In order to create the illusion of sexual discrimination you are bringing in a third gay (adding a variable not related to gender) man and saying see he’s not being treated equally to to male employee A. The gay employee disappears to be replaced with a monolithic male employee once you need to strike down a rule that immediately terminated employment for any pregnant employee. You can’t have it both ways.

      1. I’m sorry, I’ve read this like five times, and you’re not making any sense.

        We’re conducting a sex discrimination analysis from the perspective of one male and one female hypothetical employees. They both prefer to date men. The only thing we’re altering between the two is their sex. If you compare a man who likes to date women, and a woman who likes to date men, you’ve altered two variables simultaneously (their sex, and their sex preference: these are independent variables. To assume otherwise is to stereotype, and thus discriminate, because of sex).

        Gorsuch’s analysis requires no reference to sexual orientaton, because it doesn’t care about sexual orientation. Only your type of analysis requires the law to even think about sexual orientation, because you’re imposing ‘straight’ as a condition for comparison.

        1. Assume that sexuality is trait that is at best not easily changed. Our fired male employee is gay. If we want to test whether sex is a but-for cause of him being fired, we ask what would have happened to a woman who was identical in every other trait besides sex. If she wouldn’t have been fired, then we have discrimination because of sex. However, wouldn’t that women necessarily also have been gay, thus also been fired, and we don’t have discrimination because of sex?

          1. You get to change one thing – the sex of the employee. You don’t get to change who the employee is dating.

            I mean, let’s change this away from sexual orientation. A woman gets fired for wearing pants, that is, clothes appropriate to the opposite sex. If we compare to a similarly situated man, do we have to also assume that choosing to wear clothes of the opposite gender is ‘innate’, and thus we have to compare to a man wearing a skirt, and if the business would fire both of them then it’s not discrimination? Clearly this has to do with sex-specific stereotypes, and is thus discriminatory: we should compare the woman wearing pants to a man wearing pants.

            Same logic here. Assuming sexual orientation is fixed is forcing sex-specific stereotypes, and thus obviously discriminatory. The proper comparison is only changing the sex of the employee, not anything else, including the sex of the romantic interest.

            1. You get to change one thing – the sex of the employee. You don’t get to change who the employee is dating.

              I think by not changing the sex of who the employee is dating, you changed the employee’s sexual orientation.

              let’s change this away from sexual orientation. […] do we have to also assume that choosing to wear clothes of the opposite gender is ‘innate’

              I’m pretty sure choice of dress is behavior rather than a trait.

              Clearly this has to do with sex-specific stereotypes

              I agree with the outcome in Bostock because per Price Waterhouse, he was impermissibly fired because of the sex stereotype that men shouldn’t date men. But, that conclusion does not rely on a but-for cause analysis.

              1. And homosexuality is also a behavior, not a trait.

                Transvestism could be just as innate. It’s sort of fundamental to some of what transgender activists assert as what makes ‘male’ and ‘female’ things.

                There are likely underlying traits (either genetic or brain-developmental) to both these behaviors (and tons of others), but we don’t give people DNA tests or MRIs before firing them. When you fire someone for being a gay man, you’re firing him for his *behavior*, because you find his *behavior* objectionable.

                1. “And homosexuality is also a behavior, not a trait.”

                  So then what’s wrong with laws against homosexuality? We outlaw lots of behaviors that the majority finds objectionable even though people enjoy engaging in them.

                  1. Because it’s discrimination on the basis of sex? Because it violates their individual constitutional rights?

                    I mean, if it didn’t violate their rights, and we hadn’t passed anti-discrimination laws that covered sex, then sure, in that bizarro world you *could* outlaw it. It’d be highly unethical and stupid, but you could do it.

                    1. “Because it’s discrimination on the basis of sex?”

                      How so?

                      “Because it violates their individual constitutional rights?”

                      Which ones?

                      “I mean, if it didn’t violate their rights, and we hadn’t passed anti-discrimination laws that covered sex,”

                      Anti-discrimination laws like Title VII don’t apply to passing laws.

                      “then sure, in that bizarro world you *could* outlaw it.”

                      You realize that Lawrence v. Texas was decided in 2003, right? And that before that Bowers v. Hardwick held that laws against homosexual conduct were constitutional. And that many states did have laws outlawing homosexual conduct even after Title VII?

                    2. How is it discrimination on the basis of sex? Because you’re criminalizing acts you wouldn’t criminalize when done by the other gender.

                      Which rights? 14th amendment: equal protection.

                      Lawrence v. Texas was right, and Bowers was wrong. Bowers was always wrong. As has often been the case, the court is unwilling to make findings against significant cultural resistance. Similar notoriously wrong rulings include Dred Scott and Korematsu, which were not only wrong when later over-turned, but wrong when they were decided.

                    3. “How is it discrimination on the basis of sex? Because you’re criminalizing acts you wouldn’t criminalize when done by the other gender.”

                      No you aren’t. It’s equally illegal for men to have sex with men as it is for women to have sex with women. Men and women are treated equally by the law. And when you really think about it, “criminalizing acts you wouldn’t criminalize when done by the other gender” is a pretty poor way to put it. For any kind of sex to be legal, both parties have to consent to it. Pretending that you can change the sex of one partner and the other partner won’t care is pretty presumptuous.

                      Or, because you and Gorsuch seem to want everything as specific as possible, you could pass a law outlawing everything except penile-vagina intercourse. There’s no sex discrimination there. Both men and women are entitled to participate, and it can’t be done except with men and women.

                      “Which rights? 14th amendment: equal protection.”

                      How so? Why are people who like to engage in gay sex entitled to protection under the Equal Protection Clause when people who like to engage in other disfavored behaviors aren’t?

                      It wouldn’t be based on sex. You can’t make the Loving v. Virginia argument that even though both blacks and whites are prevented from marrying each other the laws are motivated by anti-black animus. Here there’s no animus to either sex. There’s animus for sure, but its ant-gay animus, not anti-man or woman animus. And according to you, anti-gay animus isn’t a real thing. It’s a just a dislike of a particular type of behavior.

                      “Lawrence v. Texas was right, and Bowers was wrong.”

                      Sure, but that’s not a particularly compelling defense of anti-gay laws needing a bizarro world.

  6. During oral argument in October, Justice Gorsuch suggested that this “case is really close, really close, on the textual evidence.” Something apparently changed between October and June when he concluded that the “law’s ordinary meaning” in 1964 was “unambiguous.”

    A close case as to whether the text is ambiguous seems a pretty normal way to read this.

    You did not do so.

    1. Also, there’s no estoppel effect in oral arguments. Justices are literally JAQing off, as the Internet likes to say. I have been at oral arguments where a judge asked a really tough question of the Appellants, did not get a good answer, and then signed an opinion ruling for the Appellees.

      This whole notion of reading the tea leaves from oral argument is something lawyers and analysts do because we have nothing else to go on. But justices do not have any responsibility to accurately state what they are thinking at oral argument. They have every right to go so far as to lie about which side they are favoring if they think it will draw useful information.

      1. He’s implying something untoward happened.

        1. He’s full of it. He’s acting like the most ignorant clients, who see a judge change his or her mind about something or rule inconsistently with a comment at oral argument and assume the judge must be on the take or have been “gotten to”.

          He knows comments at oral argument don’t have this sort of talismanic significance.

          1. “He knows comments at oral argument don’t have this sort of talismanic significance.”

            Does he, though?

            Do you remember a time when the VC mostly consisted of posts from EV, IS, OK, and JA … with the occasional DB post and/or a Jim Lindgren special?

            As opposed to this guy spamming it up with his HAWT TAEKS?

            1. I think it’s more a little more dissonant than you do, Loki, because Josh Blackman really does know a bleep-ton about the Supreme Court. When he’s doing straight analysis or diving into important cases of the past, he can actually be very good.

              So he knows these are HAWT TAKES, and he must know what is wrong with them, but he publishes them anyway.

              1. A little knowledge is a dangerous thing, Dilan.

                No one is an expert on everything. Look at areas in which you practice and compare it to something else. For example, I can opine a little bit better than the average layperson about criminal law in general, only because I have some legal training, but compared to someone who specializes in that area of criminal law? Or, for that matter, take someone who is commenting about the criminal law procedures in their own jurisdiction.

                You know what I mean. Heck, look at this blog; we have people who claim to be attorneys (for example, in areas like ERISA law) and I have no reason to doubt them on that, but I don’t think that they’ve practiced in other areas in a VERY LONG TIME based on their comments.

                The issue with law professors is that they generally combine a lack of knowledge with actual practice with an inability to realize that their scope of knowledge is necessarily limited; in other words, they suffer from the usual hubris of all attorneys who are often called upon to, inter alia, cross examine experts in countless fields, with the combined arrogance that comes from being in academics and not having to have their hot air tested by anything more than a bunch of 2Ls dragooned into Law Review by free bagels.

                All of which is a long-winded way of saying that I have not only been unimpressed with his posts that go into areas that I actually know about, Blackman seems spectacularly (and willfully?) uninformed, preferring to concoct political theories and palace intrigues to cover up for this lack of knowledge of the subject matter.

                1. I agree with everything you said up until the last paragraph, but Blackman really does know a significant amount about the Court. For instance, he is reasonably good at reading the tea-leaves about which decisions are still out. And even if I don’t agree with all his analysis about them, the 100 Supreme Court cases you all should know project is quite good.

                  Blackman is being disingenuous with this particular hot take. He knows darned well what questions at oral argument do and don’t mean. No lawyer or professor who follows the Court with any degree of care doesn’t know this.

                  But yes, the first four paragraphs of your comment are a concise summary of everything wrong with the discourse of legal “experts” in this country. It’s been this way since at least the OJ trial.

                  1. But here’s the thing- getting a superficial knowledge of Supreme Court practice to know the assignment of opinion isn’t that difficult. I mean, it’s appreciated, but it’s not like he doing groundbreaking work on the shadow docket (like Baude).

                    I can tell you all about how my CoA uses their IOP and how the motions and merits panels are assigned; that doesn’t mean that I am suddenly an expert on their 4th Amendment crimpro opinions.

                    1. Of course. But you probably know what questions at oral arguments in your circuit do and don’t signify.

                      My basic point is the venn diagram of “people who are capable of writing a pretty decent summary of 100 SCOTUS cases everyone should know” and “people who don’t know that questions at oral argument don’t have talismanic significance as to a justice’s views” shows a null set.

    2. More importantly, Gorsuch was clearly asking a hypothetical about what should happen if the case were close, not saying that he actually thought it was:

      JUSTICE GORSUCH: Right? When a case is really close, really close, on the textual evidence, and I — assume for the moment I’m —

      MR. COLE: Yeah.

      JUSTICE GORSUCH: — I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re — we’re talking about the text. It’s close. The judge finds it very close.
      At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it —

      1. Oh, jeez. Well done doing your homework there; I was caught out once again by my trusting and lazy nature!

      2. Ouch. Very ouch.

        These guys are law professors?

      3. That’s an extremely poorly worded hypothetical. Read in a grammatical fashion that is a man who thinks it’s close also asking a hypothetical that takes the closeness of the analysis for granted.

        Any ways that’s quite embarrassing that a man at the peak of his profession would be that inarticulate. You answer a senior partner’s question like that during a presentation in my industry and you are cleaning out your desk within the hour. But then again it’s not like the long term trend of America’s best and brightest eschewing law hasn’t been well discussed for years.

        1. Next from Blackman:

          Why Did Oral Argument Make Me So Concerned About the Mental Faculties of Gorsuch? And Roberts. And All Who Disappoint Me.

  7. If someone (like Blackman) continues to cite the most consequentialist Supreme Court justice, Alito, as his guiding light on textualism and originalism ….

    Well, that tells you everything you need to know about exactly where Blackman’s (lack of) principles lie.

    Tell us more about “Blue June”!

  8. Didn’t Scalia used to say that originialism wasn’t a political project, that people would be surprised to see it support liberal as well as conservative outcomes in particular cases? I guess for many originalists that wasn’t to be taken seriously…

    1. Textualism is not originialism

      1. Is textualism a political project? Should people be unsurprising to see it support liberal as well as conservative outcomes in particular cases?

        1. I beg to differ.

          Originalism is a kind of textualism, textualism is not a kind of originalism.

          1. Ok. I think you have it backwards. Textualism has to be a form of originalism. Why do you think the text matters? (Where did the text come from?)

            1. Don’t follow your point.

              Textualism has to be a form of originalism

              No, originalism (obedience to the original meaning of the text) is a subset of textualism (obedience to the meaning of the text.) Textualism is not a subset of originalism, since there are other forms of textualism that are not originalism – such as obedience to the current meaning of the text.

              Why do you think the text matters?

              To a textualist that comes ex cathedra.

    2. Scalia was quite right as far as that goes, but this case is not a good example of it.

    3. It’s perfectly natural that conservatives are going to like textualism/originalism more of the time than ‘liberals’; The Constitution was written a long time ago, and thus represents part of what conservatives are trying to conserve, and ‘liberals’ are trying to overturn.

      Further, ‘liberals’ generally want a much more intrusive government than conservatives, and our constitution wasn’t written to create such a government.

      The bottom line is that an honest reading of the Constitution is going to get in the way of the ‘liberal’ program much more often than it is the conservative program. So ‘liberals’ would have to put most of their program on hold while they tried to get amendments if they weren’t going to go the living constitution route.

      1. So if I read you correctly, textualism is LG, conservatives are NG, and liberals are CE.

        It’s fun to have such a simple alignment system!

        1. It’s an amusing analogy, in which textualism would be lawful neutral, because the committed textualist takes the position that, good, bad, the text is the law, and that’s reason enough to enforce it.

          I’m just making a historically contingent point here; If the left prevails and rewrites the Constitution, fifty or a hundred years from now the left and the right could end up swapping their places on the value of originalism; It lines up this way only because, for continent historical reasons the Constitution IS conservative, so the left need to kick it to the curb to get their way.

          1. Not according to what you said above; you have very much aligned the Constitution (or rather the Constitution in Brett’s head) with goodness and small government to be conserved and followed for it’s own virtuous sake.

      2. There’s a lot of assumptions in this that I’m not sure have been subjected to heavy scrutiny. First, it’s not certain that conservatives just try to ‘conserve’ whatever is long founded (if this is true Soviet hardliners in the 1970’s were ‘conservatives’). Second, it’s reasonable to think previous generations were more conservative, but this also assumes that modern day conservatives haven’t developed any historically ‘novel’ tenets, and this may or may not be the case (think of conservatives questioning birthright citizenship). Third, do conservatives generally favor less government? The issues of mass warrant-less surveillance, drug laws, aggressive anti-immigration efforts, etc., could suggest otherwise.

      3. It’s perfectly natural that conservatives are going to like textualism/originalism more of the time than ‘liberals’; The Constitution was written a long time ago, and thus represents part of what conservatives are trying to conserve, and ‘liberals’ are trying to overturn.

        I think that is at best only half the story. The idea that the courts ought not to change the law but should just call balls and strikes is a central element in conservative judicial philosophy, with changes in the law being a matter left for the legislature.

        Liberal judicial philosophy is entirely happy with, indeed applauds, judges changing law to reflect emerging standards, the march of progress, whatev.

        Of course, in a common law tradition, judges have always had a role in developing law, but in Olde England they were operating in on a virtually blank slate, with barely a scribble of statute law to play with. Moreover the idea was that judges should crystallise pre-existing custom not fashion new laws out of whole cloth. A common law development of same sex marriage, for example, could never have happened in an era of state registered marriages, since there would be no way for a custom of same sex marriage to develop.

        And they were exceptionally conservative in developing the common law – a century of Olde English common law development would add up to a wet weekend at the 9th Circuit.

        Now we have a vast carpet of statute law, the role of common law development is greatly circumsubscribed. And textualism is a disagreeable constraint on judicial discretion. It’s no fun at all to be a real conservative judge.

        So when policy-conservative judges make up stuff to achieve conservative policy goals, they’re cheating, under the principles of conservative judicial philosophy. But when policy-liberal judges do the same, mutais mutandis, they’re not cheating. They’re playing by their own liberal judicial philosophy rules.

        1. “The idea that the courts ought not to change the law but should just call balls and strikes is a central element in conservative judicial philosophy, with changes in the law being a matter left for the legislature.

          Liberal judicial philosophy is entirely happy with, indeed applauds, judges changing law to reflect emerging standards, the march of progress, whatev.”

          Yeah, I’m just saying that, to some degree, this IS because conservatives can get what they want from a balls and strikes judiciary, because they happen to have a constitution which actually DOES align well with their goals, having been written by people who were, in a modern context, rather conservative.

          While ‘liberals’ need that pull-it-out-of-your-ass judiciary, because they’re confronted with a constitution which legitimately bars much of what they want.

          This was contingent: You could imagine a world where, maybe a hundred years from now after the left prevails and literally, not just figuratively, re-writes the Constitution, it’s the right that has to pull things out of their rear to get where they want to go, and the left prevails under any honest reading.

          1. With this, I disagree. I think there is a genuine conservative element in conservative political (and so legal) philosophy rather than merely “right wing” philosophy.

            No doubt faced with a wall of liberal text, a new conservatively minded judiciary would be strongly tempted to adopt a squint when calling those balls and strikes. And no doubt they would often fall for the temptation.

            But at a lower rate than the libs now, because they would know that what they were doing was naughty.

            1. One generation’s “What we’re doing is naughty, but we’ll rationalize doing it because this is important.” becomes the next generation’s “This is a bit sketchy, but there’s precedent.”, then the next generation’s “Anybody who thinks this is wrong is a crackpot.”

  9. That’s… interesting. So does that mean if I have reason that isn’t rooted in prejudice discrimination is legal? Say I own a bar, and I will only hire female bartenders because men will spend money on drinks to attempt to hit on them.

    Or can I discriminate against a race if my customers are less favorably inclined towards that group even if I’m not personally racist?

    Has any court actually held anything like that? I’m genuinely curious because the articles take on “discriminate” seems bizarre.

    1. For the bar, yes you can. In fact many bars and restaurants do exactly this (ever seen a male server at Hooters?) because depending on your business model it can be considered a bona fide occupational qualification

      As for the second example, no that is not allowed. I can’t remember the exact case but basically it came down to all business as governed by the same rules, so not being able to hire only a particular race doesn’t give your business any competitive disadvantage, as other businesses must follow the same rules

      1. “ever seen a male server at Hooters?”

        Note that Hooters has settled at least two lawsuits filed by men alleging sexual discrimination in hiring servers, so it’s not entirely clear that being a woman is actually recognized as a bonafide occupational qualification for a Hooters server.

        1. Pretty sure being a female is a BFOQ for lesbian porn actresses.

          1. Pretty sure its a BFOQ for actresses of any type. Otherwise they’d be actors.

  10. I quite agree, and particularly on Gorsuch’s confusion of the text “because of…sex” and the judicial gloss on the text – that “because of” denotes a consistent logical relation whereby “but for” is substituted for “because of” ; and then “but-for test directs us to change one thing at a time and see if the outcome changes.”

    This may be a reasonable heuristic in some cases, but it certainly isn’t a reliable touchstone of what “because of” means in all cases. “Because of” is not in a one to one mapping with “but for.”

    In particular it fails where the rule guiding the choice made by the decision maker reflects a relational condition, rather than a simple monopolar condition.

    Thus – wherever you see the same letter appearing consecutively, in the previous sentence, delete those same letters.

    In particular it fails where the rule guiding the choice made by the decision make eflects a relational condition, rather than a simple monopolar condition.

    It turns out that there was only one repeated letter (if I got it right) – I had to delete the r of maker and the r of reflects. I had no idea it was going to be r I was picking on when I made up the rule, and of course there were plenty of rs I left in. I had no fixed prejudice against r. But in order to apply my rule I did have to identify the letters. I could not apply it without noticing that the r in maker and the r in reflects were both rs. On Gorsuch’s “but for” logic, I discriminated against r simply because I had to identify those two rs as rs in order to apply my rule. But all that shows is that “but for” is not the same as “because of”.

    Moving away from dry logic, I’ll repeat an illustration I gave in an earlier thread.

    A cop hears a shout and rushing round the corner finds a distraught shopkeeper who says he’s just been robbed. The cop asks – what did the robber look like ? The shopkeeper suddenly points over the cop’s shoulder and shouts – “look, there he goes, the black guy in the hoodie darting into the alley!” The cop turns round and catches a glimpse of a leg disappearing into an alley. So the cop runs to the entrance of the alley – it’s a dead end. And there are two guys in the alley – both wearing hoodies. One black guy and one white guy. The cop arrests the black guy.

    Did the cop arrest the black guy “because of” him being black ? On the Gorsuch analysis he did. “But for” him being black the cop has no reason to pick the black guy to arrest, rather than the white guy. Having been told by the shopkeeper that the robber was black, the only thing that the cop is using to discriminate between the two hoodied guys is race.

    That may be an amusing exercise in analyzing “but for” logic, but it gives a woefully wrong answer to the “because of” question. The cop arrested the black guy “because of” the fact that he met the shopkeeper’s description. If the shopkeeper had specified a white guy in a hoodie then the cop would have arrested the white guy. If he’d specified a Chinese girl in a tutu, both hoodied guys would have been in the clear.

    And the reason that “but for” is doing a bad job standing in for “because of” in this case is that the cop is applying a relational rule – does the description of the guy in the alley match the shopkeeper’s description of the robber ? Whatever that description happens to be.

    The cop has to identify race and use it in applying the rule in this case (where race is part of the description), but that does not mean that the cop is discriminating “because of” race. He’s discriminating “because of” a match between description sought and description found.

    1. Your example just demonstrates that an event can have multiple but-for causes, and that’s nothing new.

      And your example doesn’t prove what you think it does. The reason it’s not discrimination has nothing to do with “identification” or anything else. We can apply but-for logic easily. What if the robber was white? Well, then the storekeeper would’ve identified a white man and he’d still have been arrested.

      1. 1. No, you’re confusing multiple but-for causes with a single relational cause. In the case of multiple but-for causes, each cause is logically a necessary condition. You are (a) incompetent and (b) female. You have to be both to get fired. But a single relational cause is different – the two related elements within the single cause are not, individually, necessary conditions. In my deleting letters example, it is not necessary that either letter be a r. All that is necessary is that both be the same letter.

        2. Ha ! Thanks for that – you have precisely reformuated the “but-for” test to arrive at the Alito preferred answer in the Bostock case.

        The whole point of the Gorsuch approach is that you cannot go back and change anything else but the sex of the employee. Likewise you can’t go back and change the shopkeeper’s description. All that you can do is ask – what made the cop pick the black guy in the alley to arrest, and not the white guy. The shopkeeper’s “black”description is immutable – a given.

        In the Bostock case, when you change the sex of the employee, Alito would have you change the sex of the partner too – to arrive at the real “relational” rule which the employer is using – not the sex of the employee but the sameness of the sex of the employee and partner.

        And that’s precisely what you’ve done by changing the shopkeeper’s answer to “white” – demonstrating neatly that when you abstract the politics everyone can perfectly well understand that the rule that the cop is acting on is nothing to do with race, and is everything to do with a match between description and suspect.

        1. In the hiring world, your example would hinge on being a bona fide occupational qualification. The cop arrests the black guy because he’s black, because the shop keeper described the robber as black. Race then becomes a bona fide cause to arrest him and not the white guy

          Similarly, a makeup company won’t hire a black woman to model light colored foundations, because skin color is a bona fide occupational qualification

          1. “Race then becomes a bona fide cause to arrest him and not the white guy[.]”

            This isn’t right. First of all, the employer would never claim, practically, that the reason he fired the employee was because of a BFOQ. Race isn’t a BFOQ in fact, here, because the reason he fired the employee was not because of his race. He fired him because of the rape. The race was irrelevant. (It really isn’t even a but for cause of the firing.)

            But more importantly, the employer would never rely on race as a BFOQ because race cannot be a BFOQ. The BFOQ defense under 42 USC 2000e-2(e) does not apply to race. It is conspicuously limited to “religion, sex, or national origin”. (This is an interesting fact, since the CRA, which purports to prohibit discrimination on the basis of race, sex, etc., itself discriminates in that it treats some classes as more special than others.)

            The point Lee More is making is pretty strong, in my view. But for arose in a context, specifically helping plaintiffs make cases against defendants for discrimination, to avoid getting into multiple causes or predominating causes. But that assumes the discrimination alleged is one the statute was intended to redress, which is easy to do where race is involved. However, but for causation makes no sense if the intended application is the very thing at issue. In effect, Gorsuch was using but for to bolster his conclusion about intended application, which may have things backwards.

  11. Good article.

    “Gorsuch’s pivot to a “but-for” theory of causation to understand “because of” was the key move. Indeed, this choice dictated the outcome of Gorsuch’s entire textualist analysis.”

    As I commented before, but-for causation came from tort law, and it had to do with proving causation of damages. This is different, because it has nothing to do with causation of damages, but it has to do with the subjective “cause” or “reason” for some action with respect to employment. But the idea is similar.

    In the development of tort law, it became clear that “but-for” causation is a necessary, but sometimes not sufficient element of causation. You also need to determine whether there is proximate cause. I used the example of dropping a glass bottle and leaving it on the sidewalk or floor. If someone cuts themselves on it, you may be negligent and liable. But for your negligent action, plaintiff would not have been injured.

    Now suppose that sunlight refracts through the glass and causes a fire that burns down a building. Or light refracts through the glass and shines into the eye of a police horse walking by, causing the horse to jerk off course and throw the officer, which causes a passing vehicle to swerve and crash into a crowd of pedestrians. Again, but for your negligent action, none of this would have happened. And yet there will be an issue of whether your action was the proximate cause of these events. Part of this analysis is whether there was a “superseding cause.” Perhaps someone left a pile of kerosene soaked rags around, causing a fire when the refracting light shone on the rags. Perhaps someone was playing with a laser pointer, causing the refracting light through the glass that blinded the horse.

    Centuries of “but for” causation analysis has determined that while it remains the primary factor in analyzing causation, it is undeniable that there is always a point at which the cause becomes too remote for this technical analysis to make sense. This is illustrated in the concept known as the “butterfly effect” where supposedly a butterfly flapping its wings in Taiwan could somehow affect the course of major events on the other side of the globe.

    The Title VII case is not so physical, rather it is concerned with the subjective motivations of the human mind. But the same idea seems to apply, maybe even more so. If you have a Muslim barber shop that will hire 99% of men that apply but prefers not to work with one that presents themselves as a woman, maybe you have a superseding cause or reason. Maybe it really has little to do with the mere fact that the job applicant is a (wo)man.

    At least, that’s surely what the plain, ordinary, and undisputed meaning of “discriminate against because of sex” was in 1964.

    1. Your analysis of “but for’ and multiple and proximate causes is interesting because it throws into sharp relief the logical error at the heart of all this. And that is that in the Bostock cases we are not looking at multiple causes, but just a single cause.

      As you say, ““but-for” causation is a necessary, but sometimes not sufficient element of causation.

      It is not applicable unless the element of causation is a “necessary” one.

      But there are all sorts of causes, which I choose to call “relational” causes, which are not an addition of a series of smaller, independent, “necessary” causes, but a single cause founded on a relation.

      Thus “pick the student with the highest SAT score” is a decision rule. To implement it, you need to look at the SAT scores of each of the students. Let’s say you have six students and the scores are 1325, 1455, 1507, 1523, 1484 and 1379. And the winner is number 4 with 1523. But his scoring 1523 was not a necessary condition of him winning. Indeed his scoring “more than 1507” wasn’t a necessary condition of him winning. The only necessary condition was that “his score was the highest.” If Ms 3 had only scored 1470, then Mr 4 would have won with 1485. If Ms 3 had scored 1542, Mr 4’s 1523 would have lost.

      There are no necessary conditions within the single decision rule. We don’t have several “but for” elements applied in series. We have a single rule, that requires us to do a bit of work including measuring component elements, to discover what the single rule entails.

      Taking the other 5 SAT scores as givens, and then identifying the highest of those plus one as a “necessary condition” of winning, changes the logical structure of the decision rule. It is logically wrong to apply the “but for” analysis to component elements of the decision rule, which are not in themselves, necessary conditions.

      1. Yes. I offer another analogy.

        Let’s say I am making a salad with all kinds of fruits and vegetables. I’m including many different fruits and vegetables. But I dislike bananas. I’m not going to put any bananas in.

        Have I rejected bananas “because of” them being a fruit? After all, but for it being a fruit, it would not have been a banana, and I would not have disliked it.

        1. If you rejected bananas because you think something about them makes them less of or not really a fruit….

        2. I commented on this in another thread. You are correct if you would include any and every vegetable. If there is at least one vegetable you would not include, you are incorrect.

  12. Didn’t Ilya Somin propose the same argument Gorsuch adopted? oh yeah he totally did http://volokh.com/2012/02/07/same-sex-marriage-bans-and-sex-discrimination/
    maybe take it up with him

  13. Don’t call them “progressives.” Call them what they are – far left socialist agitators.

    1. Don’t call them “conservatives.” Call them for what they are- authoritarian morons who elected Trump because they hate America.

      1. Its not our side that hates America bub

        1. Did you read Aktenberg?

          Or what about your nihilism, can’t love a country if you don’t care about it’s principals.

          1. Realism is often mistaken for nihilism by the simple minded. In politics, principles are merely a rhetorical device. I’ve never seen a successful politician not willing to abandon a claimed principle if he thought the benefit was big enough.

            A recent example:

            “Coons used to be the staunchest Democratic opponent of filibuster reform. In 2017, he co-wrote a letter with Republican Susan Collins urging their colleagues to keep the great lever for obstruction in operation, pledging to “partner with our colleagues across the aisle to get things done for the American people.” Hah.

            Now Coons is hedging his support for the filibuster:

            “I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn,” Coons said. “I am gonna try really hard to find a path forward that doesn’t require removing what’s left of the structural guardrails, but if there’s a Biden administration, it will be inheriting a mess, at home and abroad. It requires urgent and effective action.” NY Magazine

            1. ” In politics, principles are merely a rhetorical device.”

              The word you’re looking for is post-modernism, not realism.

              Or fascism.

        2. Your side hates modern America, Bob. Conservatives can’t stand all of this damned progress, which interferes with their multifaceted bigotry, backwardness, superstition, disdain of science, taste for undeserved privilege, authoritarianism, etc.

          My side welcomes and shapes modern America, while clingers pine for ‘good old days’ that never existed.

    2. Hey, Jimmy, know how I can tell you got nothin’? When you roll in with empty namecalling like that is doing anything but validating some weird thing you got going on.

      1. Nope just call ’em like I see ’em – more agitprop from far left socialist agitators.

        1. I imagine anyone to the left of Robert Welch you’d describe like that.

  14. If you’ve got a job applicant who’s male, and claims to be female, is female but claims to be male, is 23 but claims to be 65, is able bodied but says they’re missing an arm, and have scheduled surgery to amputate the growth on their shoulder…

    If you decline to hire them, it’s not due to their sex, age, or disability status, though you have to mention those to explain why. It’s because they’re nuts.

    I can see Gorsuch’s reasoning when it comes to gays and lesbians, though it takes the law in a direction the authors didn’t intend, and would have rewritten the law to preclude had it ever occurred to them it might be read that way. But the application to transgenders? No, those people aren’t being discriminated against on the basis of sex, they’re being discriminated against on the basis of insanity.

    1. those people aren’t being discriminated against on the basis of sex, they’re being discriminated against on the basis of insanity

      Bigotry is not an argument, no matter how offensive an analogy you make.

      1. Sarcastro:

        Always the one accusing others of empty name calling devoid of substantive argument; always the one actually guilty of it.

        1. Calling trans people “insane” is bigotry. An insane person is a person who doesn’t know the nature or quality of her act, does not know right from wrong, or (maybe) cannot volitionally conform her conduct to the law.

          Trans people have none of those things. You can argue that some of them suffer from gender dysphoria- that’s a debate within the psychiatric community- but nobody thinks they are insane.

          So when Brett casually labels all trans people to be insane, yeah, that’s bigotry.

          1. Even if “insane” is too strong of a word to use in broad strokes here, and even if doing so constitutes bigotry (which means intolerance toward others’ opinions), this response is still not substantive. Its the same logical form as calling someone stupid rather than explaining why they’re wrong. Google says the definition of insane involves a “state of mind which prevents normal perception.” To respond in a substantive and charitable way you will have to replace Brett’s “It’s because they’re nuts” with “It’s because they lack normal perception with regard to what sex they really are” and go from there.

            1. (which means intolerance toward others’ opinions)

              That’s not what bigot means. Webster’s defines it this way: ” one who regards or treats the members of a group (such as a racial or ethnic group) with hatred and intolerance”.

              Falsely saying all trans people are insane is certainly regarding the members of that group with hatred and intolerance.

              And no, there’s nothing in a trans person’s stat of mind which prevents normal perception, or at least, to get to that point, you have to engage in bigotry. You have to tell a trans woman, for instance, that her own knowledge of her own life, self, and existence, which tells her quite accurately that she is a female, is wrong. To make Brett’s statement, you have to say that all trans people, people you and Brett have never met, are ALL wrong about their perceptions of their gender. Why would you know this?

              The only way you would know this is if you assume it to be true from a position of transphobic bigotry.

              1. You conveniently skipped the first part of the definition, and only included what comes after “especially.” Bigotry generally means intolerance toward other opinions. But again, what is or is not bigotry is not the issue.

                “You have to tell a trans woman, for instance, that her own knowledge of her own life, self, and existence, which tells her quite accurately that she is a female, is wrong.”

                Well, she is wrong, if by “female” you are referring to biological sex. If by “female” you are referring to the newspeak definition of “gender,” then no, I don’t have to tell anyone that they are wrong. If you prefer to wear makeup and high heels, or whatever, I’m not going to come and say “No, you’re wrong, you don’t actually prefer those things.”

                1. Well, she is wrong

                  That’s damned arrogant and transphobic. You have no basis to know that.

                  And as for the rest of your comment, refusing to believe in “gender” as a concept is just ignorant. And of course, ignorance and bigotry (or, if you prefer, transphobia) go hand and hand.

                  1. Funny how you poke these people crying about the textualism not being really textualist and they end up having a way out there outcom-oriented worldview they’re trying to push.

                    1. Justice Kennedy has gotten a lot of crap, including from people who agreed with the results of his gay rights cases. But he really identified the key point when he talked about “animus”. You really have to have a legal argument that doesn’t peel back to “these people shouldn’t exist” or “I think everyone in this group is disordered” or “I think the law ought to be able to punish people for not conforming to my thinking about sex and gender”. Those are the views that power homophobia and transphobia, and any legal system worth its salt would rule those arguments out of bounds.

                      But without that, they have very little to go on.

                    2. Dilan,

                      I wonder if you are capable of rational, logical thinking.

                      What does “transgender” mean?

                    3. “But he really identified the key point when he talked about “animus”. You really have to have a legal argument that doesn’t peel back to “these people shouldn’t exist” or “I think everyone in this group is disordered” or “I think the law ought to be able to punish people for not conforming to my thinking about sex and gender”. Those are the views that power homophobia and transphobia, and any legal system worth its salt would rule those arguments out of bounds.”

                      Unless I am mistaken, I believe you are one of the people who doesn’t believe in natural rights and instead believes that all of our rights are gifted to us by the government. If that’s the case, what’s wrong with laws based on animus to disfavored minorities?

                    4. Unless I am mistaken, I believe you are one of the people who doesn’t believe in natural rights and instead believes that all of our rights are gifted to us by the government. If that’s the case, what’s wrong with laws based on animus to disfavored minorities?

                      One obvious reason is because animus is a bad argument. Just think of any court case at all, and the plaintiff argues “I should win because there’s three cases from different appellate courts that say I should win, and because I have proven all the facts that show that I am entitled to a judgment in my favor”. In response, the defendant argues “I should win because you should hate the plaintiff”. That’s not a good argument! It’s not one that the law should give much weight.

                      The second obvious reason is that the entire notion of equal protection, due process, and a system of civil rights statutes is based on the assumption that treating people differently because of some irrational dislike for the group he or she belongs to is terrible. So we have passed laws and developed legal doctrines, positivist laws and doctrines, which say that animus is disfavored.

                    5. “One obvious reason is because animus is a bad argument.”

                      Why? Not all laws based on animus are bad. For example, there are laws based on animus to people who abuse animals. Those laws aren’t protecting anyone’s rights. Instead, they are clearly targeted at people who engage in activities that society finds distasteful.

                      “Just think of any court case at all”

                      We aren’t talking about court cases, we are talking about the laws themselves. If all of our rights are limited to those granted to us by the government, why doesn’t the majority have the right to discriminate against disfavored minorities?

                      “The second obvious reason is that the entire notion of equal protection, due process, and a system of civil rights statutes is based on the assumption that treating people differently because of some irrational dislike for the group he or she belongs to is terrible.”

                      Sure. And that’s easy to explain under a natural rights theory. But where does that assumption come from if people are only entitled to the rights the government decides to give them?

                    6. For example, there are laws based on animus to people who abuse animals.

                      No, those are based on protecting animals, not animus.

                      The opposite of an animus-based law is one that is based on demonstrable harm.

                      Indeed, the homophobes knew this. This is why they spent years making crazy predictions about how permitting homosexuality would lead to the downfall of Western civilization. They wanted to claim it was about harm and not animus.

                    7. “No, those are based on protecting animals, not animus.

                      I disagree. We’re not worried about protecting animals with animal cruelty laws. It’s perfectly okay to kill an animal to eat it. Or because there’s too many strays in a shelter. Or because they’ve gotten inconvenient. Not infrequently the animals seized because of animal cruelty laws have to be destroyed. How is that protecting them? We don’t like people who are mean to animals so we outlaw that aberrant behavior.

                      “The opposite of an animus-based law is one that is based on demonstrable harm.”

                      Harm to who? Based on what? Who is being harmed if the government approves the conduct?

                      “Indeed, the homophobes knew this. This is why they spent years making crazy predictions about how permitting homosexuality would lead to the downfall of Western civilization. They wanted to claim it was about harm and not animus.”

                      Which they wouldn’t have needed to do if gays were only entitled to the rights that the government chooses to give them. There’s no need to justify discriminatory treatment if the only rights anyone has are those granted by the government.

                  2. A strong deeply held delusion is a mental illness.

                    Insanity. n. mental illness of such a severe nature that a person cannot distinguish fantasy from reality [law.com “insanity”]

                    A human being with female chromosomes and female reproductive organs is a female. If that female believes she is male, then that is a fantasy, not reality.

                    Yelling bigotry does not make fantasy real.

                    1. A human being with female chromosomes and female reproductive organs is a female.

                      This is assuming the conclusion, a basic logical fallacy. Hint to Bob: “female” does not mean what you think it means.

                    2. “A strong deeply held delusion is a mental illness.”

                      Strange argument from a guy whose political coalition relies on people steeped in superstition, believing fairy tales to be true.

                    3. “Hint to Bob: “female” does not mean what you think it means.”

                      Sure it does. Female means woman.

                      This Newspeak you advocate is tiring and deceptive.

                      Listen Dilan, if you want to wear a dress, go ahead, no one will care.

                    4. Female means woman

                      Yes it does. Trans women ARE women, Bob.

                    5. “This is assuming the conclusion, a basic logical fallacy.” It’s no different whichever side is doing it.

                  3. “That’s damned arrogant and transphobic. You have no basis to know that.”

                    Dilan, Dilan, Dilan.

                    Let’s go back to what you said.

                    “You have to tell a trans woman, for instance . . . ”

                    (Emphasis mine).

                    Tell me something, Dilan. What exactly do you mean when you say “trans woman”?

              2. “Falsely saying all trans people are insane is certainly regarding the members of that group with hatred and intolerance.”

                Setting aside your unjustified “falsely”, nothing stops me from having compassion and sympathy for people who suffer from the various dysphorias. An anorexic has a real problem, for instance. But that problem isn’t obesity, and and I’m not responding to them with hatred and intolerance just because I refuse to tell them they’re fat and should get bariatric surgery.

                The “trans” have some serious medical problems, and research shows that humoring them and mutilating their bodies doesn’t fix those problems, any more than dieting fixes anorexia.

                1. Btw, I have been right all along that public bathrooms are designed suboptimally—we should have one restroom for everyone with much more privacy at each stall. It’s amazing how using common sense (instead of being a knee jerk reactionary) could solve most cultural problems fairly easily. And it works for conservatives too—don’t like pensions that exclude same sex spouses or multiple spouses then switch to 401k.

                  1. Chicks are too messy. I don’t want them messing up my bathrooms.

                    1. You must be a gay male. Gay males are the only group that should support the current configuration.

                    2. Nah, I’ve just had to clean up women’s locker rooms before.

                    3. Lol, you want to continue inhaling poo particulates because you believe women are “messy”. I guess gay men and poo huffers are the two groups that are fine with the public bathroom status quo. 😉

                  2. I have been right all along that public bathrooms are designed suboptimally—we should have one restroom for everyone with much more privacy at each stall.

                    Because a urinal takes up no more space than a stall with a sit down toilet, and a door. Amirite ?

                    1. You can still have urinals in the back because optimal design gets rid of entrance doors. But the poo huffers want to perpetuate the status quo because they like inhaling poo particulates…stinky.

            2. Come now, we all know the real definition of insanity is ‘doing the same thing and expecting different results’. I’ll leave conclusions about where the real insanity is to independent judgement.

          2. Right. What it means is that they use different definitions for words than Brett and his ilk do. All those words that Brett thinks refer to sex, they think refer to gender. And apart from trans* people, they agree in almost every case, so …

        2. I said something; and below you clearly picked it up, as did Dilan.

          So quit with your myopic textualism, this isn’t debate club or the SCOTUS!

      2. That’s not bigotry: A man who thinks he’s a woman is literally insane in the same way you’d be insane if you thought you were Napoleon Bonaparte. They’re convinced of something that’s objectively wrong, and in defiance of their sensory data.

        I realize that psychiatry is highly politicized, and currently takes the position that insanity consists of not being able to hold down a job that can pay your psychiatric bill, and/or being a serious risk to attack your psychiatrist. But by any normal definition of insanity, such people are insane.

        1. A man who thinks he’s a woman is literally insane in the same way you’d be insane if you thought you were Napoleon Bonaparte.

          Even if I were to agree with this, trans women are, of course, women who think they are women. Which would mean the “insane” person is Brett Bellmore, who is deluded and thinks that they are men.

          1. “trans women are, of course, women who think they are women.”

            “How many fingers am I holding up, Winston?” Dilian, you don’t have electrodes wired to my genitals, what the hell makes you think you can force me to see five fingers when you’re holding up four?

            1. He wants to change the language so only Dilan- approved thoughts can be uttered.

              1. Bob, your side is asking for the change in language, not mine. Your side is insisting on misgendering people.

            2. Just say double Xes instead of other terms for biological women.

          2. trans women are, of course, women who think they are women

            In the Brettiverse this sentence has a clear meaning. That is – that trans-women (the thing being defined) are “women” (humans of female sex) who think they are “women” (humans of the female sex.)

            But what does the sentence mean in the Dilaniverse ? What is the definition of “women” in the Dilaniverse ?

            I anticipate that the answer may be “humans of female gender” but if that is indeed the answer, i would appreciate a non circular explanation of “gender” to accompany it.

            I understand clearly what Brett thinks trans-women are claiming to be, but I have no such understanding of what Dilan thinks trans-women are claiming to be.

            1. In public health and medical and other settings in which it is important to distinguish between XX and XY simply say XX and move on. Other than that there is no reason to not refer to the person how they want to be characterized. That said if you have more than 2 genders and it is confusing you can’t get upset if someone makes a mistake when referring to your gender. A very progressive word for all of America to employ is “y’all” because it is gender neutral.

              1. Other than that there is no reason to not refer to the person how they want to be characterized

                No, there’s a very good reason to refer to the objective reality using the words that describe it. Because perpetual metaphor and euphemism is confusing. Now it may be that in some cases, especally when you are addressing someone directly there is no great harm in humoring them. “No you’re not fat” may cheer someone up. Though it may be doing them no favors, if they could and should take their fatness in hand.

                But that is a case of one reason trumping another reason, and it is a matter of judgement as to which reason should prevail on any occasion.

                1. Ok, and on Sunday morning at brunch when I am seated near Christians coming from church I talk real loud about all of the evidence that Jesus was a homosexual…because everyone should try to be as uncivil in our society as possible because “free speech”.

                  1. What part of

                    Now it may be that in some cases, especally when you are addressing someone directly there is no great harm in humoring them.

                    did you find particularly difficult to understand ?

                    1. And I don’t think it does Christians any good to go along with their delusion that God exists and Jesus was his son. So I will be ordering extra vodka in my Bloody Mary so I can be extra loud and obnoxious the next time brunch is permitted.

            2. I anticipate that the answer may be “humans of female gender” but if that is indeed the answer, i would appreciate a non circular explanation of “gender” to accompany it.

              “Gender” is the social construction of masculinity and femininity, of “maleness” and “femaleness”. A person who presents herself as a woman is a woman.

              That, by the way, is actually the only way you can ever get to a gender binary (although obviously many LGBT activists reject one). “Biological” sex doesn’t get you there, because a non-trivial number of people are intersex.

              1. “presents herself as a woman is a woman”

                Wearing culturally determined feminine clothes [dress, skirt, heels] and maybe wearing your hair long and putting on make up is how one “presents” as a woman.

                You are saying if you dress like we [collectively] think women dress, that makes you a woman.

                Good god man, listen to yourself. Looking like a woman doesn’t make you one.

                1. Wearing culturally determined feminine clothes [dress, skirt, heels] and maybe wearing your hair long and putting on make up is how one “presents” as a woman.

                  Not true. They correlate with it, but they are not necessary to present onesself as a woman.

                2. “Gender” is the social construction of masculinity and femininity, of “maleness” and “femaleness”. A person who presents herself as a woman is a woman.

                  So if I understand correctly we are to define “woman” as “person who presents herself in a manner consistent with the social construction of femininity”

                  Which moves the ball to the question of the social construction of femininity. Not the particular social construction in a particular society, but what how we identify femininity in any society – ie who do we look at to discover what feminine behavior is ?

                  Are we looking to the behavior of persons of female sex to set the standard ? Or the behavior of persons saying “I am a woman ?” Is not the latter going to arrive at the same answer as the former anyway, since the overwhelming majority of women qua gender are going to be cis not trans ?

                3. If it walks like a duck, and quacks like a duck…

                  I mean, this probably wouldn’t be popular with trans-activists either, but we could have different terms to refer to biological sex and gender. Say if ‘man’ and ‘woman’ were gender significers, but ‘male’ and ‘female’ were biological sex signifiers, you could have female men, female women, male women, and male men, and it would all be clear. (This doesn’t solve the intersex problem without an additional term, and of course, there’s little reason to limit gender to only two possibilities once you allow for gender as a purely social construct).

                  1. How about leaving men and women to describe the biological sex, as has been the case forever; and allowing those who want nouns to describe folk who would like to present as members of the sex they are not members of, to come up with some new nouns.

                    I think you’re kinda missing the point of the language insurgency by the activists (and not just in the field of transy stuff.) The object of the exercise is to make the old concept – in this case the idea of categorising a human as of male or female sex – unsayable.

              2. “Biological” sex doesn’t get you there, because a non-trivial number of people are intersex.

                In the sense that even one person is not trivial, I agree.

                In the sense that you mean there are lots and lots of intersex people, no. Most alleged ‘intersex” conditions are not really intersex – ie the individuals are unambiguosly male or female, but have diseases of sexual development.

                1. Are we talking about ‘hardware’ (sexual organs) or ‘software’ (genes)?

                  ~1 in 1666 births “requires” a specialist in sex determination, so that’s a reasonable floor for physical intersex *at birth*. (Not all arguably intersex conditions manifest at birth). That’s not *that* rare.

                  And not all of these things are dictated by sex chromosomes. True hemaphroditism, for example, is caused by autosomal genes.

                  1. We’re talking about phenotype – primary sexual organs – ie gonads.
                    Not genes, not penises, vaginas, uteruses etc and other secondary sexual characteristics. Gametes define the sex of the animal, and gonads are the gamete factories. Everything else is gravy.

                    ~1 in 1666 births “requires” a specialist in sex determination, so that’s a reasonable floor for physical intersex *at birth*. (Not all arguably intersex conditions manifest at birth). That’s not *that* rare.

                    No that’s not a floor, it’s pretty much smoke rising from a chimney, distantly above the roof, distantly above a high ceiling above a distant floor.

                    The vast majority of such cases do not involve actual intersex conditions. In the first place, once a specialist is used, nine tenths of those cases are resolved. Not always correctly, but usually so.

                    As for “late developers”, Late-Onset Congenital Adrenal Hyperplasia, the commonest so-called “intersex” condition, is not an intersex condition, it is a disease of sexual development and the sex of the individuals concerned is not ambiguous.

                    True hermaphroditism in humans – ie functioning gonads of both sexes is, so far as I am aware, unknown. Which is not to say that it couldn’t happen, merely that if it exists it is so rare as to be unobserved.

                    Ambiguous gonads are very rare indeed, typically the result of mosaics.

                    1. True hemaphrodites, in humans, doesn’t mean functioning, it just means present both sets of sexual organs. They don’t tend to have *any* functioning gonads, but they do have both. So is your claim that they are neither male nor female?

                      Several other conditions also have no functioning gonads. Turner Syndrome, for example, often fails to develop ovaries. There’s an estimated 70,000 people with Turner Syndrome in the US right now, so not particularly rare. And they’re generally ‘assigned female’, but according to your gonad criteria, most of them aren’t, and that’s not even an intersex condition!

                      “In the first place, once a specialist is used, nine tenths of those cases are resolved.”

                      According to whom? The specialists? (If it was so obvious which gender they were, a doctor wouldn’t need to consult a specialist at all.)

                    2. True hermaphrodites, in humans, doesn’t mean functioning, it just means present both sets of sexual organs.

                      Humans are just animals, they don’t have a reproductive biology particular to the species. True hermaphrodites really do exist in other species – creatures that can produce eggs and sperm. But so far, not in humans. When I refer to true hermaphrodites I mean functional hermaphrodites, ie in species where reproductio works that way. I do not intend to imply that sex determination is impossible in creatures with non functional gonads.

                      There are rare humans which have both ovarian and testicular tissue, and some even rarer cases they can ovulate – which would make them female; and other, yet rarer cases where they can create sperm. But so far – not both. Animals that can create eggs are female, and animals that can create sperm are male. In species with true hermaphrodites, the hermaphrodites are not “neither male not female” they are both. In humans, possessing both ovarian and testicular gonadal tissue makes you genuinely intersex. And rare.

                      They key point is that sex (in animals) is a strictly binary category which refers to gametes. There are two and only two, and exactly two, sexes because there are two, only two and exactly two different types of gametes – eggs and sperm.

                      To determine the sex of the organism then requires determining which types of sex cells the creature is designed to make.

                      Where there are functioning gonads, sex determination is simple. Identify the gametes and you’ve identified the sex – which can be male, female or both. (And in some species the sex of the organism can change across time, as the creature stops making one type of sex cell and starts making the other kind.)

                      Where the gonads are not functional, whether because they are still developing, or were functional once and have ceased to be so, or whether because of some unfortunate developmental flaw they are never functional, we can still identify which type of gametes they are designed to produce. So non functional gonads are not a bar to sex determination. Complete absence of gonadal tissue, however, is a bar. Not aware of any such humans though.

                      Sufferers from Turner syndrome all have ovaries, or ovarian gonadal tissue, so they are unambiguously female.

          3. You know that’s not true, which is why you say “trans women.” The qualifier wouldn’t make any sense if “trans woman” and “woman” were the same thing. You know that there’s something that distinguishes them.

            1. “Woman” could refer to biological sex or gender identity. Trans woman specifically refers to a person whose biological sex (*) is male and gender identity is female.

              (*) More accurately, there assigned sex at birth, which almost always matches their biological sex (but the latter isn’t always clear).

              1. Rube Goldberg language cannot change facts.

              2. Josh R is very logical and coherent on this issue, even if we disagree ultimately. Dilan is incoherent.

            2. Trans women are contrasted with cis women, David. They are both women.

              Nobody denies transgenderism is a thing. But that doesn’t mean trans women aren’t a kind of woman.

              1. The kind that aren’t women, to be specific.

                1. But Jesus is more of a deity than Thor??

            3. Nieporent : You know that’s not true, which is why you say “trans women.” The qualifier wouldn’t make any sense if “trans woman” and “woman” were the same thing. You know that there’s something that distinguishes them.

              Not obvious to me what point you’re trying to make. If you mean the Brettiverse sentence, though it has a clear meaning, is obviously false, I agree. A trans-woman is not a type of woman, where “woman” is interpreted in the biological sense. Which is why Brett thinks it’s false. A sea-horse is not a type of horse.

              In the Dilaniverse, however, a trans-woman is indeed a type of woman. But we still need to find out what “woman” means beyond the apparently circular –

              a woman is a person who presents as a woman.

        2. “A man who thinks he’s a woman is literally insane in the same way you’d be insane if you thought you were Napoleon Bonaparte. They’re convinced of something that’s objectively wrong, and in defiance of their sensory data.”

          How so? If the brains of men and women are different in meaningful way, as almost certainly seems to be the case, why would it be categorically impossible for a person to develop with a female brain and an otherwise male body?

          1. Look, there are people, sad unfortunate people, whose bodies are thin, but whose brains tell them they are fat. We don’t call these people “obese”, we call them “anorexic”. We don’t treat their very real anguish with bariatric surgery and weight loss plans, because their weight isn’t their problem, and reducing their weight won’t reduce their conviction they are fat, it will just starve them into an early grave, because the very point of their problem is that their conviction they are fat is irrational!

            Similarly, there are people, sad, unfortunate people, whose bodies are intact, but whose brains insist to them that their arm is some foreign growth, which they then desire to have removed. We don’t tell them that they are right about this, and cutting off their arms doesn’t cure them.

            “Transgenderism”, where it isn’t just a prediliction towards cross dressing, is of this nature. Your body is male, your brain says, “no, I should be female”. OK, their brains really are telling them this. But that doesn’t mean that they’re really women, just that their brains are screwed up.

            Does humoring them and surgically mutilating their bodies help? Research says, no. Johns Hopkins pioneered “gender reassignment” surgery, then after a while stopped doing it, because in keeping track of the patients, they found it hadn’t actually helped them.

            Then they were bullied into resuming for political reasons, but that didn’t change the science, it was just the science being “changed” for ideological reasons.

            Even the Obama administration back in 2016 concluded there wasn’t any evidence the surgery helped people,

            If your brain is telling you that you’re something you’re not, changing your body doesn’t cure the problem. That’s the best evidence at this time.

            1. Why do you care one way or the other? The only thing I will agree with you is if it is bad to try to discourage obviously young gay people from being gay then on some level you shouldn’t encourage young people confused about their gender and sexuality to act on their confusion. Wouldn’t encouraging a gay person to be trans be just as bad as encouraging a gay person to be straight?? So being trans is fine but so is being straight or gay or whatever…we have almost 8 billion people on the planet so from a perpetuation of the species perspective we are doing just fine.

            2. “because the very point of their problem is that their conviction they are fat is irrational!”

              Sure. But that’s something you haven’t established when it comes to transgender people.

              “OK, their brains really are telling them this. But that doesn’t mean that they’re really women, just that their brains are screwed up.”

              It could be, or their brains could be fine and its their bodies that are screwed up. I’m agnostic on the issue. But I don’t think the analogy to anorexics is particularly strong. My understanding of anorexics is that when they look in the mirror, they genuinely believe that the frail person they are looking at is still too fat. I don’t think any transgender people are under any illusion about what their body actually looks like.

              But you haven’t established that a person’s belief that they are transgender is irrational in the same way an anorexic’s belief is. And if there really are differences between male and female brains, their brains aren’t just talking about their physical bodies. Why is genitalia more important than the brain when determining whether someone is male or female? The locus of our personality is generally recognized as being in the brain. Why is it necessarily the brain that is screwed up rather than the body?

              “because in keeping track of the patients, they found it hadn’t actually helped them.”

              Did it hurt them? But there’s little reason to believe that gender reassignment surgery would be a silver bullet. It’s not like gender reassignment surgery actually turns a male body into a female body. And are post-operative transgender people really that much more accepted than pre-operative ones?

              “If your brain is telling you that you’re something you’re not, changing your body doesn’t cure the problem. That’s the best evidence at this time.”

              That’s a partial argument against gender reassignment surgery, not transgenderism.

              1. Did it hurt them? Actually, yes. Follow ups show that in addition to a terrifyingly high suicide rate, (Even if they move somewhere nobody knows they’re not what they appear.) they have a wide range of morbidities. Of a study in Sweden:

                “The study identified increased mortality and psychiatric hospitalization compared to the matched controls. The mortality was primarily due to completed suicides (19.1-fold greater than in control Swedes), but death due to neoplasm and cardiovascular disease was increased 2 to 2.5 times as well. We note, mortality from this patient population did not become apparent until after 10 years. The risk for psychiatric hospitalization was 2.8 times greater than in controls even after adjustment for prior psychiatric disease (18 percent). The risk for attempted suicide was greater in male-to-female patients regardless of the gender of the control. Further, we cannot exclude therapeutic interventions as a cause of the observed excess morbidity and mortality. The study, however, was not constructed to assess the impact of gender reassignment surgery per se.”

                This is some fairly serious surgery, AND altering your hormone balance away from what your genes are set up for. It’s the sort of really invasive treatment you don’t do in the absence of good reason to think it actually helps people, and we don’t have that!

                “That’s a partial argument against gender reassignment surgery, not transgenderism.”

                If some dude wants to claim he’s a girl, that’s not really any skin off my nose, unless you insist I have to humor his delusion, and treat him as though he really was one, or else. At that point, it’s messing with MY rights.

                I’m simply not going to pretend you’re holding up five fingers when I only see four. And that’s really what is going on here, in the classic 1984 sense. It didn’t have to be transgenderism, it could have been any delusion or lie, the point is just to break people’s connection to reality by forcing them to pretend a lie is truth. Once you can do that with one lie, you’ve proven you can do it with any lie.

                1. “This is some fairly serious surgery, AND altering your hormone balance away from what your genes are set up for. It’s the sort of really invasive treatment you don’t do in the absence of good reason to think it actually helps people, and we don’t have that!”

                  Allow me to quote myself. “That’s a partial argument against gender reassignment surgery, not transgenderism.”

                  You’ve done nothing to establish that it’s impossible for their to be a difference between the sex of the brain and the sex of the rest of the body. You’ve also done nothing to establish that if it is possible, that the sex of the body is correct rather than the sex of the brain. Now, don’t get me wrong, the converse is also true for the other side. Of course, this is to be expected because we really understand very little about the brain, which is why I remain agnostic on the issue.

                  “And that’s really what is going on here, in the classic 1984 sense.”

                  Give me a fucking break. This is nothing but hysterical bullshit.

          2. Brett : “A man who thinks he’s a woman is literally insane in the same way you’d be insane if you thought you were Napoleon Bonaparte. They’re convinced of something that’s objectively wrong, and in defiance of their sensory data.”

            jph : How so? If the brains of men and women are different in meaningful way, as almost certainly seems to be the case, why would it be categorically impossible for a person to develop with a female brain and an otherwise male body?

            It would be astonishing if the brains of men and women were not systematically different to some extent, since the behaviors of men and women in the ancestral environment were to some extent different. Even leaving aside “gender” roles in hunting, gathering, other work, social interaction etc, different behavior was required in getting and keeping a mate, and in child rearing.

            Since there is no reason to believe that evolution did shape body sex differences but carefully avoided shaping that part of the body that nestles between the ears, then some sex differences in the brain are more or less certain. How big and how consistent they may be, and how much infuenced by genes and how much by the environment is another question.

            But stipulating all that doesn’t really refute Brett’s point. Suppose there are indeed typical differences, however big or small or merely statistical, between the brains of males and females; and suppose that there are also accidents of genes or development that place a “female brain” in the head of an “otherwise male body” ?

            The female brain does not flip the animal from male to female. It’s the “otherwise male body” that determines the sex. Not the manly voice, the hairy chest, the ample penis or the male skeletal structure – they like the brain are secondary sexual characterstics which can vary a bit. No – it’s the testes. If you’ve got those you’re male. The rest of you can look, and even think, like Rita Hayworth, but if you’ve got testes you’re a dude.

            So, now stipulating “dude” thusly, what does male Rita’s female brain actually think ? If “she” thinks – I hate that I have testes. I wish that I had ovaries. I want to live as women live, I want to be treated like a woman, though I’ll have to tell my husband that we can’t have children.” Then, no she’s not crazy at all. Perfectly reasonable to want that.

            But if her female brain says “You are actually a woman. Some women have testes, you’re just one of those” then her brain is deceiving her.

            Unless of course she’s just using gender-speak, ie she knows she’s male (sex) and is just using woman in the gender sense of presentation / social acceptance wish. In which case we revert back to sane Rita – I know I’m a dude, but I’d rather be treated as if I wasn’t.

            1. My key point here, aside from a flat refusal to say “five fingers”, is that the dysphorias, generally, are not cured by trying to make the body match the self-image. The self-image doesn’t match the body, that doesn’t typically change when the body is changed, the person continues to perceive something “wrong”. That’s why you can’t diet your way to not being anorexic.

              A woman’s brain in a man’s body, or visa versa, produces a homosexual, not a transexual.

              1. “A woman’s brain in a man’s body, or visa versa, produces a homosexual, not a transexual.”

                You just keep outdoing yourself.

            2. “The female brain does not flip the animal from male to female.”

              What about for a human? We’re more than just mere animals.

              “No – it’s the testes. If you’ve got those you’re male.”

              So you’re saying the science is settled? What if the science is wrong? Or what if the science is just incomplete?

              But more importantly, science is just a way of describing and understanding the world. It doesn’t actually change anything. And if it asks the wrong questions, it will get the wrong answers.

              1. me : “The female brain does not flip the animal from male to female.”

                jph : What about for a human? We’re more than just mere animals

                Well, up to a point. We’re quite interesting animals and we do have large brains that play a big part in how we differ from other animals. But although there are some average differences in male and female behavior, humans are not very sexually differentiated as to behavior (or body structure for that matter) compared with other mammals. Rather we are probably more in the direction of sex equality than most species. So there’s no reason to single out humans as “special” as regards sexual differentiation. Certainly the human brain plays a part in reproductive behavior but so does the monkey brain and the rat brain. And in each case it’s all very very secondary, way downstream from the stuff that really matters – sperm and eggs.

                So you’re saying the science is settled? What if the science is wrong? Or what if the science is just incomplete?

                As you say, the science is never settled. And in the field of reproductive technology we can see glimpses of strange possibilities even now. So – who knows – though it sounds very unlikely, perhaps the medical folk will work out how to convert human eggs into human sperm that actually work to fertilise other human eggs. Though I understand that conceptually going from sperm to egg is a much trickier proposition. Perhaps they will work out how females could grow themselves some working testes and a penis, from their own stem cells.

                So who knows, perhaps science will arrive at a place where gonads are not the last word in human gamete production. But for now, they are.

                1. “So who knows, perhaps science will arrive at a place where gonads are not the last word in human gamete production. But for now, they are.”

                  But why is gamete production the last word in what it means to be a human man or woman? What if we’ve been asking the wrong questions all along? Whether someone is a man or a woman is not necessarily the same thing as whether they are biologically male or female. It could be. But I don’t think we’re anywhere close knowing for sure.

                  1. I’m just addressing sex, not the meaning of life.

                    Whether someone is a man or a woman is not necessarily the same thing as whether they are biologically male or female.

                    Well, it kinda is if you’re using “man” and “woman” to mean “human of male sex” and “human of female sex” – as has been the usage from since English got started until very recently.

                    So, sure, we could discuss other concepts of “man” and “woman” that are not based on biology, but it would certainly be useful to that discussion if folk would not use the same words that are used in the traditional biological “man” and “woman” distinction. And super extra useful if folk would define “xan” and “xoman” or whatever, clearly and consistently – only then could be ever begin to “know” something about them.

                    The trouble with “man” and “woman” used in a gender-ish fashion rather than in a sex-ish fashion is that the meaning always seems to shapeshift, and when prodded it contradicts itself.

                    Thus a “woman” (gender) is a human who presents as a woman”
                    is obviously (a) circular or (b) uses woman in two different senses in the same sentence. If you substitute “person of the feminine gender” for the second appearance of “woman” you simply move the question to the contents of “feminine.” Who is society looking at when it’s assembling it’s social construction of “feminine” ?

                    I don’t say it can’t be done, it’s just that I’ve never seen it done.

                    I am, btw, entirely on board with your notion that someone of sex A can have a brain structure more typical of someone of sex B, caused by genes, hormones, or environmental influence and it would be fascinating to find out the details, and how they affect behavior. Difficult since there is a great overlap between the sexes anyway. But interesting.

  15. Scalia and Volokh blazed the trail for liberal textualism with the Heller majority and Gorsuch is following their path. So in Heller the words “state” and “militia” were defined with broadest definition and Gorsuch does the same thing with “sex”. Going forward lawmakers should consider drafting laws in such a way that they can be interpreted by people with IQs closer to 120 than 180…people with 180 IQs should probably focus their brain power on building space ships so we can get to Mars.

  16. Some people are missing the point, which Gorsuch made clear from the statutory text. Animus against a protected class is not required, because the law protects individuals, not groups. Treating an individual male less favorably than a similarly situated female that exhibited the exact same behavior is illegal. If you fire Bill for marrying Steve, but would not have fired Sally for marrying Steve, you are discriminating (distinguishing) against (less favorable outcome) Bill (undisputed fact) “because of” something. You aren’t discriminating against men, or homosexuals, or any categorical group – you are discriminating against an individual, and you can’t explain the difference between Bill and Sally without sex. That the analysis defines terms broadly is to be expected in the context of a statute with remedial intent. In fact, the true basis for discrimination against Bill is not his sex, but your religion and his failure to conform to its behavioral expectations. Which is the slipperier slope?

    1. “If you fire Bill for marrying Steve, but would not have fired Sally for marrying Steve, you are discriminating (distinguishing) against (less favorable outcome) Bill (undisputed fact) “because of” something.”

      What if You aren’t firing Bill for marrying Steve, but because Bill came up to You and said, “You, I’m a homosexual”? And You would have fired Sally if she had said, “You, I’m a homosexual” because you don’t like homosexuals of either sex?

      “Treating an individual male less favorably than a similarly situated female that exhibited the exact same behavior is illegal.”

      Why isn’t a similarly-situated female also gay?

      “you are discriminating (distinguishing) against (less favorable outcome) Bill (undisputed fact) “because of” something.”

      Sure. His sexual orientation. Which has the convenient property of tracking the way real people actually talked about these kinds of cases before the lawyers got involved.

      1. If you fire Bill for merely admitting homosexuality (or having that status), you are discriminating on the basis of religion (which is the only reason to find same-sex attraction detestable). You lose either way.

        1. “If you fire Bill for merely admitting homosexuality (or having that status), you are discriminating on the basis of religion (which is the only reason to find same-sex attraction detestable).”

          I suppose that would have been the next attack had this one failed. Maybe that’s how Gorsuch will shoehorn discrimination against bisexuals into the mix.

  17. I can’t wait for a big decision that is ostensibly based on an originalist approach by an ostensibly conservative justice that disappoints conservatives. Then we’ll read the article about how “…some political conservatives have started to question the merits of originalism itself.” It’s almost as if conservative legal scholarship is just in bad faith and entirely outcome-driven.

  18. Does anyone else think it’s a kind of frat-boy hazing that Randy luxuriates in liberal tears on Twitter while Josh is left to try Randy’s arguments out on actual lawyers? It feels like an oldtimer on Deadliest Catch is making a greenhorn bite the head off a live cod.

  19. Textualism or sheer Sophistry?

    1. Define “textualism”. 😉

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