
U.S. Supreme Court endorses gay, transgender worker protections - singingwolfboy
https://www.reuters.com/article/us-usa-court-lgbt-idUSKBN23M20N
======
rayiner
A better title would be “Supreme Court holds that Title VII prohibits gay,
transgender employment discrimination.”

Titles like these make people think that the Supreme Court is “endorsing” or
“rejecting” gay and transgender worker protections. But the difference between
the majority and minority here wasn’t about “should we have a law protecting
gay and transgender workers from employment discrimination?” It was “do we
_already have a law_ protecting gay and transgender workers from employment
discrimination.” The majority, in an opinion authored by Justice Gorsuch—a
dedicated textualist—said that such discrimination violates the 1964 Civil
Rights Act’s prohibition on discrimination “because of sex.” I happen to
agree, being in the camp that believes “the law says what it says, not want
Congress wanted it to mean.” But it’s important to understand that the upshot
of this decision is that “Congress, in 1964, already prohibited employment
discrimination against gay and transgender people.” That’s a pretty remarkable
outcome!

In one of the appellate decisions leading up to this, Judge Lynch of the
Second Circuit dissented, agreeing with the positions that Alito, Kavanaugh,
and Thomas would take, that Title VII does not protect gay and transgender
workers. He’s an Obama appointee, born in Brooklyn. His take:
[https://www.nytimes.com/2020/06/15/us/gay-transgender-
worker...](https://www.nytimes.com/2020/06/15/us/gay-transgender-workers-
supreme-court.html)

> “Speaking solely as a citizen,” he wrote, “I would be delighted to awake one
> morning and learn that Congress had just passed legislation adding sexual
> orientation to the list of grounds of employment discrimination prohibited
> under Title VII of the Civil Rights Act of 1964. I am confident that one day
> — and I hope that day comes soon — I will have that pleasure.”

> “I would be equally pleased to awake to learn that Congress had secretly
> passed such legislation more than a half-century ago — until I actually woke
> up and realized that I must have been still asleep and dreaming,” Judge
> Lynch wrote. “Because we all know that Congress did no such thing.”

~~~
dahfizz
> I happen to agree with Justice Gorsuch’s majority opinion (the existing law
> already covers such discrimination, in view of the text and existing
> judicial gloss on the text).

Could you expand on this a bit? I'm genuinely asking. The article sums up the
contention pretty well:

> The legal fight focused on the definition of “sex” in Title VII. The
> plaintiffs, along with civil rights groups and many large companies, had
> argued that discriminating against gay and transgender workers was
> inherently based on their sex and consequently was illegal.

At first glance, I think I agree with Judge Lynch. Its great that these
protections extend to more people, but I think the argument is tenuous. A gay
man and a straight man have the same sex, so discrimination against the gay
man is not really based on sex, but on sexual orientation.

And, as I understand it, the difference between sex and gender is very
important to transgender people. Biological sex != the gender you identify as,
that's why we say trans_gender_ and not trans_sex_ . How does a MTF trans
person who has not undergone surgery / hormone treatment / sex change answer
if asked what her sex is? Again, genuine question.

I guess this is a "spirit of the law" situation, where "sex" doesn't just mean
"sex", but all sex /gender/orientation/ groupings of people.

Personally, I think it would have been ideal to amend the law and explicitly
add gay / transgender people as a protected class. This avoids the possibility
of another case in a few years overturning this one. But the current congress
would never write such a law.

~~~
rayiner
Title VII prohibits employment discrimination against someone “because of”
their “sex.” Supreme Court precedent holds that this phrase includes
discriminating against someone for not conforming to sex stereotypes. For
example, in _Price Waterhouse v. Hopkins_ the Court held that it was Title VII
discrimination to fire a woman because she had masculine behaviors. She wasn’t
fired because she was a woman, but because she was a woman who did not conform
to stereotypes and norms applicable to women.

In view of that precedent, Title VII can be seen to prohibit sexual
orientation and sex discrimination. You can’t fire a man for failing to
conform to the male norm of dating women. You likewise can’t fire someone
whose sex is male, but whose gender identity is female (i.e. she does not
conform to the gender expression expected of biological men).

~~~
dahfizz
That makes a ton of sense, the precedent about sex stereotypes was the missing
piece for me. Thanks!

~~~
thisiszilff
Also, In the article I believe the reasoning is outlined that given you
wouldn't fire a woman for dating a man, then firing a man for dating a man is
discriminating on he basis of sex. The behavior alone isn't objectionable,
it's only when sex comes into play that you start discriminating which cases
are ok and which aren't.

------
hvs
Here's the decision:
[https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf](https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf)

The dissenters basically believe that “race, color, religion, sex, or national
origin.” doesn't include "sexual orientation" or "gender identity" so
legislation would need to be passed to change that.

~~~
tejohnso
>race, color, religion, sex, nationality

Wouldn't it be more effective for the law to say that any discrimination that
doesn't affect a person's ability to perform the job is not allowed?

When you start itemizing specific traits it's a never-ending list. For
example, the list quoted doesn't include eye color or hair color, or spoken
language dialect, or ...

~~~
hpoe
Playing Devil's advocate, let's imagine I pour my life savings into opening up
a fruit stand, it does well I move to a fruit store that is popular and
everyone loves, at this point everything has been bought with my personal
funds, it is basically my property, I run it as a sole proprietorship instead
of an LLC, I hire people, but ultimately everything is bought paid for and
owned by me.

I also happen to hate people with purple hair and decide to ban them from my
property and refuse to service to them. Now this is my store and property that
I own, these are my goods that I sell. Why should the government be able to
legally control what I choose to do with my property and my goods, if I want
to pour them into a sewer, or set them on fire should I not be allowed to do
that? So why should the government force me to sell them to people I do not
want to?

So the reasoning behind carving out every specific protection revolves around
the idea that there should be a good reason for the government to control what
I do with my private property, as it extends to reducing my liberty to do with
my property what I want, and now becomes a matter of balancing various parts
of the implicit social contract.

Whether or not this is justified or which side is right is a different
discussion but that is why each exception needs to be carved out as I
understand it.

~~~
pc86
You're absolutely allowed to discriminate based on hair color because it's not
a protected class.

As a society we have decided that discriminating on some things is abhorrent
(race, et al), and other things is not (hair and eye color).

~~~
ThrowawayR2
> " _You 're absolutely allowed to discriminate based on hair color because
> it's not a protected class._"

The "not a protected class" counterargument is self-defeating because it
suggests that discrimination was A-OK before that protected class was created
by law. If illegality does not imply immorality, as is often said on HN, then
conversely legality does not imply morality.

~~~
sfkdjf9j3j
That's the inverse, not the converse, and if we're talking about propositional
logic it is _not_ implied by the original statement.

------
yodon
If you want a good tech example of how courts evolve the definition of phrases
as society evolves, you need look no farther than the word "eavesdropping." We
use that word all the time today, but why do we call it that? When towns
started to give way to cities, the spacing between houses began to shrink to
the point where rain could cause water to spill off the roof of one house onto
their neighbors property, a process that was called eaves dropping because the
water dropped off the eaves of the roofs. Who owned that water and who was
liable for the damages it might cause became a thing courts needed to address.
That English common law decision, that courts could adjudicate the ownership
of and damages caused by things that unintentionally pierced property
boundaries "because water" is today the legal basis for a broad class of
infosec law that we think of as eavesdropping law.

EDIT: HN won't let me respond to the question below on sources. This comes
from a physical copy of the 1911 Encyclopedia Britanica, which has
Eavesdropping as an entry and only discusses the water dropping off roofs
meaning, strongly suggesting that our modern use of the term had not become
common by that point.

~~~
Someone1234
> example of how courts evolve the definition of phrases as society evolves

They haven't evolved anything. Please read the court's opinion, the logic they
use to describe why "sex" from Title VII isn't divisible ("but for" test) from
LGBT rights is extremely difficult to refute.

Nothing has "evolved." They're arguing that you cannot descriminate against
LGBT people without ALSO descriminating against someone's sex, which is
unlawful. Even the dissenters weren't really able to poke holes in that logic,
instead ignoring the whole issue of how someone's sex determines if they'd get
decriminated against in some circumstances and not others (e.g. employers
banning being married to a women is only "banned" for one gender and not the
other, making it sexual descrimination).

They give numerous examples and go into great detail about why it is just
sexual descrimination with extra steps, exactly like Title VII was expressly
designed to outlaw.

~~~
gizmo686
The civil rights act has been on the books for 64 years; but has not been
interpreted this way historically.

~~~
Someone1234
It has always been interpretted exactly this way.

The Civil Rights Act Title VII bans employment descrimination on the basis of
sex, you cannot descriminate against an LGBT person without _also_
descriminating on the basis of sex.

All today's ruling did was clarify to the lower courts that sex descrimination
with extra steps and obfustication is still sex descrimination. Being LGBT
doesn't remove your rights not to be sexual descriminated against under Title
VII.

Again, I implore people to read the actual court's opinion.

~~~
cdelsolar
to play devil's advocate here, that argument breaks down for bisexual people.
But I'm aware that the court's opinion actually handles this because of prior
precedent holding it illegal to discriminate against gender norms.

~~~
drewbug01
I think this is the second time I've seen this sort of reply, and truthfully I
don't understand? Why wouldn't the argument apply for bisexuals?

If someone fires you because you're bisexual, they've still committed sex
discrimination: they fired you because you do not fully conform to gender
stereotypes (the stereotype being that gender A dates gender B; and you as the
employee may date A and B).

~~~
gizmo686
Consider a generic action FOO. Suppose Alice and Bob are identical in all
respect except that Alice is female and Bob is male; and Alice is
heterosexual.

Both Alice and Bob do FOO. If you let Alice do FOO, but fire Bob for doing
FOO, you have commited sex discrimination, because you would not have fired
Bob but for his sex. However, if you were to fire both Alice and Bob for doing
FOO, then you are treating both males and females equally, so there is no
discrimination based on sex.

In the case where Bob is homosexual, FOO=experiences attraction to men. When
Alice does this, she is fine. When Bob does this, he gets fired. Bob was fired
for being male.

In the case where Bob is bisexual, FOO=experiences attraction to men and
women. Bob still gets fired, but this time Alice does not do FOO, so there is
no comparison to base a sex discrimination case on. If Alice were to do FOO,
she would be bisexual, and fired under the same policy that Bob was. Either
way, there is no case here where a male and female do the same thing but get a
different result.

~~~
drewbug01
Thank you! I think I understand what you’re trying to say here, and it also
clarifies why I found this response confusing.

I think this idea of a loophole is too caught up in _actions_ leading to
discrimination; and also the specific setups of the tests that the Supreme
Court laid out in their ruling.

There need not be a specific counter-example within an organization to compare
against when determining if an action was discriminatory or not. And moreover
they weren’t really talking about “actions taken that are incongruous with sex
stereotypes.” My understanding of the ruling (after reading it) is that if an
employer fired you for being gay/bisexual, even just for stating the fact that
you are, that would still amount to discrimination based on sex stereotypes.

Then again, I’m sure finer legal minds than mine will find any such loopholes
that do exist over the course of the next two years. >_<

------
danharaj
Unfortunately it comes at the same time that the administration rolled back
healthcare protections for transgender people. Must be terrifying for someone
to make your basic humanity a political football. SCOTUS rulings are much more
durable than executive actions though.

~~~
Pixeleen
> Must be terrifying for someone to make your basic humanity a political
> football.

Thank you, you worded it really well. A lot of us are just trying to live a
quiet life with dignity. I work for a large company that considers itself
progressive in these matters. Everybody with access to my background (HR,
upper management) is constantly letting me know that "they know" about my
background, they win awards for how well they treat me, and feel-good stuff
like "they're with me". It's hell.

~~~
danharaj
Ah but did you know how brave you are for existing? Imagine... I couldn't
exist like _that_... but _you_? So brave... your courage... to just stand
there and exist. Wow. I'm so inspired. I tell my wine tasting friends how
brave all my lgbt coworkers are and i honestly feel like an honorary lgbt and
i just tear up. _sniff_

------
andrewla
The actual decision, BOSTOCK v. CLAYTON COUNTY, GEORGIA, is here [1]

[1]
[https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf](https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf)

~~~
andrewla
There are two dissents, one by Alito joined by Thomas, and one by Kavanaugh
alone.

The Alito dissent is fairly straightforward -- Congress has tried to fix the
language of the bill several times, but has been unsuccessful, indicating that
the legislators have not universally agreed that this is how it should be
applied. They claim that fixing this should be Congress's job, not the
court's, and the attempts to amend it are clear indicators that Congress
recognizes that the law does not current protect those classes.

> Title VII of the Civil Rights Act of 1964 prohibits employment
> discrimination on any of five specified grounds: “race, color, religion,
> sex, [and] national origin.” 42 U. S. C. §2000e–2(a). Neither “sexual
> orientation” nor “gender identity” appears on that list. For the past 45
> years, bills have been introduced in Congress to add “sexual orientation” to
> the list,1 and in recent years, bills have included “gender identity” as
> well. But to date, none has passed both Houses.

> Last year, the House of Representatives passed a bill that would amend Title
> VII by defining sex discrimination to include both “sexual orientation” and
> “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has
> stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st
> Sess. (2019), would add similar prohibitions but contains provisions to
> protect religious liberty. This bill remains before a House Subcommittee.

Kavanaugh makes a very similar argument, even citing the same attempts to
amend, and I'm not sure why he didn't join.

> The Court has previously stated, and I fully agree, that gay and lesbian
> Americans “cannot be treated as social outcasts or as inferior in dignity
> and worth.” ... But we are judges, not Members of Congress ... Our role is
> not to make or amend the law. As written, Title VII does not prohibit
> employment discrimination because of sexual orientation.

~~~
dnautics
Worth noting Thomas' dissent is very consistent with his dissent in Texas V
Lawrence, where he explicitly says that if he were a texas legislator he would
vote to strike down the anti-sodomy laws (as he believes they are bad laws)
but he doesn't believe it's the SCOTUS' role to do so.

~~~
intopieces
And yet decidedly inconsistent with his reputation of being a textualist,
since he appears to take into consideration the intention drafters of the law
by looking at other attempts to amend it. He does not appear to address in his
dissent the meaning of the text itself beyond pointing out an omission that
the Majority opinion addresses explicitly (though somewhat contradictorily).

------
nsporillo
Dissenting opinions start at page 38:
[https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf](https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf)

~~~
srl
Kavanaugh's separate dissent at 145.

~~~
koheripbal
tldr...

Kav: "Sex" is not the same as "sexual orientation".

Majority: Close enough.

...but Kav makes some solid points. 50 out of 50 didn't equate the two. ...so
in a real sense, the Supreme Court is making law - not really _interpreting_
law.

...and that is a big long term danger to the separation of power.

~~~
drewbug01
Having read the opinion and dissents, I heartily disagree that Kavanaugh made
solid points. Nor Alito, for that matter.

> "Sex" is not the same as "sexual orientation".

This is the crucial point. Alito and Kavanaugh imagine a world where you can
discriminate against sexual orientation while somehow _not_ considering a
person's sex. I don't see how that is possible.

If you know that someone is gay, or lesbian - and then discriminate against
"sexual orientation," you can't say that sex didn't play a part: sexual
orientation is inextricably linked to sex and gender. It's kinda the whole
point. And in this case you _know_ that a man, or woman, is attracted to men,
or women (or both, really). Sex isn't something to wave away at that point,
it's a known fact and the discrimination seems obvious.

But even in the extreme hypothetical of "discriminating against homosexuality
while somehow not knowing the sex or gender of the people involved" still
commits sex discrimination: it then shifts to the "stereotypes"
interpretation, which has been held to be discriminatory under quite a lot of
case law at this point. In this world, you've discriminated because you know
that a homosexual person has attraction towards someone of the same
sex/gender. You don't know _what_ sex, but you know it's _about_ sex. And
that's why it falls under sex discrimination.

------
ErikVandeWater
Related question for discussion: Do you believe dress codes that have
different standards for men and women should be outlawed? For example, if a
man wants to "cross-dress" at work in front of clients and complies with the
female dress code it follows from the reasoning of this ruling he should be
allowed to.

~~~
zionic
Their logic of "imagine a person doing X (say... being attracted to a male) if
you'd punish a male for it but not a female that's sex discrimination" is
going to open up whole new world of equality/discrimination lawsuits.

Sex based bathrooms for example are now discrimination under this logic.

~~~
Kye
There's nothing legally stopping someone from using whichever restroom they
want in most states.

------
bkor
> 6-3 ruling represented the biggest moment for LGBT rights

Why did 3 vote against? Is there an explanation for their reasoning?

~~~
throwanem
Yes, they'll have written a dissent that will be published alongside the
majority opinion. I'm looking for it now, but since Reuters didn't bother to
name the case, that's more complicated than it might be.

 _edit:_ Found it:
[https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf](https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf)

Kavanaugh's dissent (p. 145ff.) appears to revolve around it being not the
proper province of the Supreme Court to decide the extent of Title VII, which,
IANAL but that seems like a weak dodge. The whole _point_ of the Supreme Court
is to finally decide among competing interpretations of extant legislation.

Alito's and Thomas's dissent (pp. 38-144) appears to rely on the same strict-
constructionist interpretation. Its Appendix A cites a stack of dictionaries.
So there's that, I guess. Appendix D is an application for employment in the
US armed forces. Presumably the body of the dissent explains what this is
meant to prove, although I doubt I would feel myself enlightened for the
effort of going back and finding that exegesis.

~~~
Amicius
The majority opinion and dissents are rich sources of insight as to how the
law in question will be applied as to how the decision could affect precedent
in the future so I agree that the least the journalists could do is name the
case so those of us who want to go to the source can look it up.

For example, the "legalization of gay marriage" case from a few years back
contained phrases and platitudes about "love not being illegal" but the crux
of the decision came down to the majority's opinion that a license issued in
one state shouldn't be rejected in another. It didn't specify MARRIAGE
license... which immediately made me comment to co-workers that in addition to
requiring marriage licenses issued in any state had to be recognized in all 50
states, logically this ruling also stipulated that a concealed carry permit
issued in any state would have to be recognized even in states that didn't
issue concealed carry permits (Illinois at the time) as well as states in
which it's very hard to get them (New York and California). To my knowledge,
nobody has tested this by getting arrested in such a jurisdiction with such
laws and challenging it citing Obergefell v. Hodges.

~~~
wwwwewwww
Would this further extend to fishing or hunting licenses?

I think I one could say that fishing or hunting licenses only apply to certain
locations - you are only able to use methods X in location Y. This out of
state the license is valid but not useful.

Then the question is whether gun license is more like a marriage licet or a
hunting license.

~~~
zacharyvoase
Well a marriage license is not actually a document certifying that you are
married, it is a document granting you the right to get married _in the state_
that issued it. You can't get a marriage license in Indiana and use it to get
married in Illinois.

Once you do get married, though, the marriage itself becomes a public record
of the state that would be protected under the Full Faith & Credit clause. But
as I mentioned in my previous comment, Obergefell v. Hodges had absolutely
nothing to do with marriage licensing and states recognizing each other's
licenses.

------
intopieces
There appears to be something of a contradiction in the majority opinion:

From page 2: "Those who adopted the Civil Rights Act might not have
anticipated their work would lead to this particular result. Likely, they
weren’t thinking about many of the Act’s consequences that have become
apparent over the years, including its prohibition against discrimination on
the basis of motherhood or its ban on the sexual harassment of male employees.
_But the limits of the drafters’ imagination supply no reason to ignore the
law’s demands._ "

Then later, on page 4:

"The employers also stress that homosexuality and transgender status are
distinct concepts from sex, and that if Congress wanted to address these
matters in Title VII, it would have referenced them specifically. _But when
Congress chooses not to include any exceptions to a broad rule, this Court
applies the broad rule._ "

The Majority refuses to limit the scope of Title VII simply because the
drafters did not consider gay and trans workers when they made the law, and
also penalizes those same drafters for not creating exceptions for individuals
they lacked the imagination to think of to start with.

~~~
drewbug01
It’s less contradictory in my mind if I don’t frame it as “penalizing” the
drafters of Title 7. To me - especially when read together - it says “Congress
gives us no choice but to apply the law in a broad fashion, because they
explicitly chose not to limit it; and it’s not our fault if this results in
unintended consequences.” With an implied wink and a nudge to Congress saying
“you can fix this if you’re really all that bothered, you know.” :)

Or maybe put another way: sure, they didn’t and couldn’t possibly have listed
all exceptions to the law. But they didn’t really try; rather they listed one
exception for everything (churches, basically) and didn’t bother with _any_
other exceptions. And in light of that, the court didn’t consider it
appropriate to read in exceptions when Congress _very_ clearly wrote an
extremely broad law. Essentially Congress gave no signal it _wasn’t_ supposed
to be broad.

~~~
intopieces
Agreed, this is a better framing, especially when you consider the tense of
the word "Choose": "Congress _chooses_ to leave this in place without
exceptions," which is in line with textualism / separation of powers.

------
throwawaysea
From [https://www.wsj.com/articles/supreme-court-rules-for-gay-
rig...](https://www.wsj.com/articles/supreme-court-rules-for-gay-rights-in-
the-workplace-11592230310):

> “‘Sex,’ ‘sexual orientation,’ and ‘gender identity,’ are different
> concepts,” Justice Alito wrote, observing that repeated efforts to
> explicitly add the latter terms to Title VII have died in Congress. During
> debates over the 1964 Civil Rights Act, no member of Congress “said one word
> about the possibility that the prohibition of sex discrimination might have
> that meaning. Instead, all the debate concerned discrimination on the basis
> of biological sex,” Justice Alito wrote.

I don't see how the justices who supported this decision can possibly claim
that the word 'sex', which has a specific definition that was even more rigid
in the 60s, can somehow include 'sexual orientation' or 'gender identity'
which are entirely different concepts. This does seem like legislation by
Supreme Court.

~~~
akvadrako
They are not saying that. Say you have two employees:

    
    
      * Person A is male and has a wife.
      * Person B is female and has a wife.
    

If you fire person B because of her sexual orientation, you are treating her
differently then person A, when the only difference is her sex.

I think the dissent does a good job showing the flaws in that argument, but
it's better then you're giving it credit for. The flaw is that you could ask
on a hiring form:

    
    
      Are you [ ] homosexual [ ] heterosexual [ ] other.
    

If they answer homosexual and you fail to hire them, you don't even know their
sex - so you can't possibly be treating men and women differently.

~~~
teraflop
For completeness, I'll quote the majority's counterargument to that thought
experiment:

> Change the hypothetical ever so slightly and its flaws become apparent.
> Suppose an employer’s application form offered a single box to check if the
> applicant is either black or Catholic. If the employer refuses to hire
> anyone who checks that box, would we conclude the employer has complied with
> Title VII, so long as it studiously avoids learning any particular
> applicant’s race or religion? Of course not: By intentionally setting out a
> rule that makes hiring turn on race or religion, the employer violates the
> law, whatever he might know or not know about individual applicants.

> The same holds here. There is no way for an applicant to decide whether to
> check the homosexual or transgender box without considering sex. [...] Any
> way you slice it, the employer intentionally refuses to hire applicants in
> part because of the affected individuals’ sex, even if it never learns any
> applicant’s sex.

~~~
akvadrako
Alito did respond to this too. As he says, if they check a box saying they are
black or Catholic, presumably they are one or the other. But checking a box
saying you are homosexual doesn't give any information about your sex.

------
seemslegit
Political affiliation otoh, which in every other western democracy with anti-
discrimination laws usually goes right alongside religion remains an
unprotected category in the US

------
js2
For all the legalese that occurs inside a courtroom, SCOTUS decisions are
surprisingly accessible. The beginning of the opinion is a lovely bit of
prose:

> Sometimes small gestures can have unexpected consequences. Major initiatives
> practically guarantee them. In our time, few pieces of federal legislation
> rank in significance with the Civil Rights Act of 1964. There, in Title VII,
> Congress outlawed discrimination in the workplace on the basis of race,
> color, religion, sex, or national origin. Today, we must decide whether an
> employer can fire someone simply for being homosexual or transgender. The
> answer is clear. An employer who fires an individual for being homosexual or
> transgender fires that person for traits or actions it would not have
> questioned in members of a different sex. Sex plays a necessary and
> undisguisable role in the decision, exactly what Title VII forbids.

> Those who adopted the Civil Rights Act might not have anticipated their work
> would lead to this particular result. Likely, they weren’t thinking about
> many of the Act’s consequences that have become apparent over the years,
> including its prohibition against discrimination on the basis of motherhood
> or its ban on the sexual harassment of male employees. But the limits of the
> drafters’ imagination supply no reason to ignore the law’s demands. When the
> express terms of a statute give us one answer and extra-textual
> considerations suggest another, it’s no contest. Only the written word is
> the law, and all persons are entitled to its benefit.

Continuing:

> From the ordinary public meaning of the statute’s language at the time of
> the law’s adoption, a straightforward rule emerges: An employer violates
> Title VII when it intentionally fires an individual employee based in part
> on sex. It doesn’t matter if other factors besides the plaintiff ’s sex
> contributed to the decision. And it doesn’t matter if the employer treated
> women as a group the same when compared to men as a group. If the employer
> intentionally relies in part on an individual employee’s sex when deciding
> to discharge the employee—put differently, if changing the employee’s sex
> would have yielded a different choice by the employer—a statutory violation
> has occurred. Title VII’s message is “simple but momentous”: An individual
> employee’s sex is “not relevant to the selection, evaluation, or
> compensation of employees.” _Price Waterhouse v. Hopkins_ , 490 U. S. 228,
> 239 (1989) (plurality opinion).

> The statute’s message for our cases is equally simple and momentous: An
> individual’s homosexuality or transgender status is not relevant to
> employment decisions. That’s because it is impossible to discriminate
> against a person for being homosexual or transgender without discriminating
> against that individual based on sex. Consider, for example, an employer
> with two employees, both of whom are attracted to men. The two individuals
> are, to the employer’s mind, materially identical in all respects, except
> that one is a man and the other a woman. If the employer fires the male
> employee for no reason other than the fact he is attracted to men, the
> employer discriminates against him for traits or actions it tolerates in his
> female colleague. Put differently, 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. Or take an employer who
> fires a transgender person who was identified as a male at birth but who now
> identifies as a female. If the employer retains an otherwise identical
> employee who was identified as female at birth, the employer intentionally
> penalizes a person identified as male at birth for traits or actions that it
> tolerates in an employee identified as female at birth. Again, the
> individual employee’s sex plays an unmistakable and impermissible role in
> the discharge decision.

> That distinguishes these cases from countless others where Title VII has
> nothing to say. Take an employer who fires a female employee for tardiness
> or incompetence or simply supporting the wrong sports team. Assuming the
> employer would not have tolerated the same trait in a man, Title VII stands
> silent. But unlike any of these other traits or actions, homosexuality and
> transgender status are inextricably bound up with sex. Not because
> homosexuality or transgender status are related to sex in some vague sense
> or because discrimination on these bases has some disparate impact on one
> sex or another, but because to discriminate on these grounds requires an
> employer to intentionally treat individual employees differently because of
> their sex.

[https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf](https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf)

~~~
andrewla
It would seem that this argument (as summarised here) would make it illegal to
discriminate based on any behavior or characteristics that would not be
problematic were the parameters to be changed.

So speaking with an offensive caricature of an Italian accent or wearing
makeup intended for individuals with a different skin tone could potentially
be acceptable under this standard. Or we would have to see a strong reversal
in tolerance for in-group people using terms that would be interpreted as
slurs were someone not in that group to use them.

I hope that the Congress will move to pass legislation explicitly adding
protections for sexual orientation and gender identity so that we don't have
to suffer through any slippery slope related to this.

~~~
rrrrrrrrrrrryan
Fortunately, our written law isn't treated like computer code, and our judges
are human interpreters and not bots.

I don't know if anyone is fighting for the right to speak in offensive accents
or to wear blackface, but if someone did these things, got fired, and took it
to court, I'd be surprised if the judges were unable to articulate the nuance
between how these scenarios differ from firing a person for being gay.

~~~
andrewla
I mean, obviously, yes, I agree -- the conditions are not even remotely
parallel, and this decision is clearly just a case of the Supreme Court
expanding a law in a direction that is _clearly_ the correct direction. They
are acting here as legislators, fixing a bad law to be better, and the "logic"
they use to justify it is clearly incorrect and not internally consistent, and
is just a patina of justification around the decision to legislate from the
bench.

We should be way more angry at our representatives in Congress who have
refused to incorporate this language into the law than at the justices who
oppose this opinion on what seem to me to be much more well-reasoned grounds
that are unrelated to their opinions on the treatment of these classes of
people.

Still, expediency here counts for something, and in the end this is a positive
move with tangible gains in the near term.

~~~
rrrrrrrrrrrryan
I actually agree with all of this, though it probably doesn't frustrate me as
much. The courts are supposed to be a check on the legislature after all.
Democracy can be two wolves and a sheep deciding what to eat for dinner. The
courts are supposed to prevent this tyranny of the majority, and protect the
rights of individuals. This decision, to me, is a perfect example of that
process working exactly as the founders intended when they set up the three
branches of government.

I'm reminded a bit of the gay marriage debacle in the late aughts. At the
time, people were arguing that we should just strike the word "marriage" from
all our laws, and replace it with "domestic partnership". Let "marriage" be a
purely religious term, a process that happens in whatever church someone
happens to attend, then everyone would be happy (theoretically). In actuality,
the legislators arguing against gay marriage weren't really arguing in good
faith, and they very much wanted "marriage" defined, in law, as a relationship
between a man and a woman. This stubbornness forced gay marriage advocates to
go through the courts, which worked for a bit, until it didn't (Prop 8), until
it did (Obergefell v. Hodges).

It's not ideal, but as long as the courts are on the side of protecting people
from having their rights legislated away, I'm not tremendously bothered by
these examples of legislating from the bench.

~~~
andrewla
I think there's a solid point in this regard because when they rule on
legislative issues (as opposed to constitutional) there is a remedy for the
legislature to override if the interpreted behavior was not what the
legislature wants (rather than just intended).

At this point, to reverse this, Republican (presumably) congressmen would have
to actively introduce legislation excluding the protections for LGBT
individuals, which would make it much more unpalatable than the current
strategy of "dragging their feet" (as with gay marriage) to prevent the law
from moving forward.

My only fear, probably unjustified, is that the logic and precedent used here
can be used to generalize the protections in unexpected and undesirable ways.

------
onetimemanytime
The dissenters are just saying that they existing law doesn't cover gays and
LGTB etc. Not that are against it. Meaning the court cannot make, but just
interpret, laws, and so on.

But no doubt if the law was passed today it would include "sexual orientation"

------
Threeve303
Lets not pretend that a company won't just point to some other reason to fire
the person. Really what stops that with this ruling?

~~~
koheripbal
The same thing that is required for any court case in the protection of a
protected class to proceed - evidence.

There are many such cases that are successful going on all the time.

Your comment is baseless cynicism.

~~~
Threeve303
I basically lost two good tech jobs back in the south because people started
rumors about my sexuality. The gas lighting and harassment went on for over
two years and has caused many psychological problems. Even now I think a
recent job offer was lost after they contacted one of these previous
employers.

As we should be aware, there is a big difference between making a rule and
enforcing one.

------
Joeri
Should I interpret the fact that the majority opinion opposes the trump
administration and was written by trump’s appointee as the supreme court’s way
of putting trump in his place?

~~~
antishatter
I'd interpret it as the supreme court isn't a political weapon to be used
against or for a sitting president rather a tool to interpret law and the anti
trump appointee stigma was baseless.

~~~
AdmiralAsshat
Gorsuch has broken rank w/Trump maybe twice. The only other one that comes to
mind was a case concerning the property rights of Indigenous People. But
that's still voting with him like 90% of the time. And I don't think Kavanaugh
has _ever_ voted against Trump's interests yet. We know for a fact that both
of them would very much like to overturn Roe v. Wade.

So no, I don't think it was "baseless".

------
LatteLazy
I think this is a good ruling both for the outcome and the logic behind it. I
would still like to see a more general change in Title VII though: instead of
listing categories (sex, race, etc) as if there is a single master list of
groups deserving of protection, the rule should be Any factor that is beyond
an individual's control AND is not relevant otherwise (not relevant to the job
for employment questions). This would prevent this weird need to fit new
groups into old categories while also continuing both the spirit of the
original law and of freedom in general.

~~~
Someone1234
In your example you've managed to inadventantly weaken Title VII, not
strengthen it.

Because "beyong an individual's control" would become a major legal fight, for
example many, even in scientific literature, thought being LGBT was "within
someone's control" as recently as into the 1970s, and certainly marrying
someone of the same sex or changing your gender is "within someone's control"
today.

So you've taken Title VII and cuts its legs out under the gies of making it
more expansive. Plus "not relevant otherwise" would likely allow much more
gender descrimination than the existing Title VII does.

------
Amicius
From the majority opinion: "The parties concede that the term 'sex' in 1964
referred to the biological distinctions between male and female."

I am not a lawyer but this sounds to me like the Supreme Court just admitted
that while the text of the law doesn't include protection for gay or
transgendered persons, they are going to retroactively "understand the term"
as though it does.

How, then, can we assume any of the laws mean what the text says when a court
can decide words mean something else? I have to agree with the dissent in this
case; amending the Civil Rights to update, expand, or clarify the definition
"sex" is the surest way to protect gay and transgender person from a future
court taking a strict textual interpretation and annulling this ruling.

Too bad the court system can't create the equivalent of a bug report for
legislation. If we had that then in this case the SCOTUS could have issued a
legislative mandate to Congress requiring them to clarify or expand the
definition of "sex" so that now-protected classes are protected from a further
court ruling on what the actual text of the law says. It is the role of the
court to interpret the laws, not make them.

~~~
notahacker
> I am not a lawyer but this sounds to me like the Supreme Court just admitted
> that while the text of the law doesn't include protection for gay or
> transgendered persons, they are going to retroactively "understand the term"
> as though it does.

The rest of the argument makes it very clear why the conservative textualist
justice who wrote the opinion considers that discrimination against homosexual
or transgendered people is based in part upon the biological distinction
between male and female: the assumption that the sexual preferences or
identity of the individuals in these cases would be entirely unobjectionable
to the employer if their biological sex was different. They're very clear on
this and go on for several pages about it.

You may or may not agree with this argument or its applicability to these
specific cases, but cherry picking something from the beginning of their
actual argument and substituting a completely different 'retroactively
"understand the term"' argument of your own invention is disingenuous at best

~~~
andromeduck
Wouldn't that also open the door for 'transracial' discrimination suits from
people like Rachel Dolezal?

~~~
notahacker
I suspect any employer who fired a white person for, say, dressing their hair
like Rachel Dolezal whilst permitting their black employees to do so would
already be in danger of the discrimination suit.

