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U.S. Supreme Court endorses gay, transgender worker protections

345 points by singingwolfboy 6y ago

danharaj 6y ago
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.
- Beltiras 6y ago
  I'd be surprised if that EO won't come up for judicial review before SCOTUS before too long. And it probably gets the same 6-3 treatment.
- jaziek 6y ago
  I've seen some people floating the idea that this ruling also nullifies that rollback, as the affordable care act does not allow discrimination of provision of care based on sex, and if this ruling is centered around the whether or not the word sex encompasses any characteristic of which sex is a part, then the same logic would apply to the ACA also.
- enraged_camel 6y ago
  That ruling is dead on arrival now - it's only a matter of time before it's enjoined by federal district courts for directly contradicting the Supreme Court's interpretation of the relevant statutory language.
  - nkurz 6y ago
    I tried to resurrect your parent post, but it remains dead. So I'll ask here instead. > I expected to be downvoted by conservatives, but not this fast. What makes you think that you were downvoted by conservatives? You probably were downvoted by people who disagreed with you, but I don't see any particular reason to believe that they are conservative. As someone else pointed out downthread, it seems equally likely that you would be downvoted for saying something that could be construed as positive about Trump, or for that matter by someone who felt that you should be downvoted for even mentioning his name. Or maybe you are right. I'd love for downvotes to require some sort of public attribution of reasoning to avoid amplification of misunderstanding.
    - enraged_camel 6y ago
      How can "it just got harder for Trump to brag about his SCOTUS" picks be construed as a positive statement about Trump?
- Pixeleen 6y ago
  > 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 6y ago
    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
- koheripbal 6y ago
  > SCOTUS rulings are much more durable than executive actions though. ...and yet, they aren't meant to be. The system was designed such that the legislative branch would produce the most fundamental and enduring changes to our system of laws. Looking to the SCOTUS to make legal/societal reforms is not only counter to the design, it's dangerous as it enables one branch to usurp the power of another. Moreover because they are appointed for life and appointed by the president, this new paradigm effectively erodes the most deliberative and democratic institution we have - the Legislature. It's sad to see such judicial advocacy so broadly applauded. I suspect the reason the courts are so ready to act to change law, rather than arbitrate law, is a consequence of the ineffectiveness of congress. ...which is, in turn, a consequence of the political polarization worsening in America. I wish we could return to an environment of more constructive in-depth discussions and less a war of emotional hyperbolic soundbites.
enraged_camel 6y ago
This is the biggest LGBT rights victory since gay marriage, and the biggest victory for transgender rights ever. The Federalist Society must be absolutely furious that Gorsuch sided with the liberal justices. And it just got a lot harder for Trump to brag about his SCOTUS picks. edit: lol, I expected to be downvoted by conservatives, but not this fast. You guys continue to amaze me. :)
- doublesCs 6y ago
  As usual, completely baffling downvoting on HN. I found this remark very appropriate. I didn't expect this from Gorsuch at all. If anything I would like this comment to be expanded (e.g. by adding context about the Federalist Society which I've never heard of)
  - afterburner 6y ago
    > Federalist Society They basically vet judges to serve as movement conservative activists on the Supreme Court. Looking for the "right" (and right-wing) stances, and complete absence of left-leaning progressive talk. Also kow-towing to corporate interests and displays of extreme loyalty to right-wing, corporate, "old boys", or evangelical thought are bonuses.
  - duxup 6y ago
    I didn't vote but I'll venture to guess the comment's sort of cheer leading a cause / for / against various groups was the reason for the votes. HN users tend to like things "distilled" a bit more, although maybe that's not the case and I just feel that way.
    - doublesCs 6y ago
      > I didn't vote but I'll venture to guess the comment's sort of cheer leading a cause / for / against various groups was the reason for the votes. The way I read it, he's just saying that conservatives didn't expect Gorsuch's decision. That is not cheering anything.
bkor 6y ago
> 6-3 ruling represented the biggest moment for LGBT rights Why did 3 vote against? Is there an explanation for their reasoning?
- rrss 6y ago
  https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf Alito and Kavanaugh wrote dissenting opinions. Thomas joined with Alito's opinion.
  - throwanem 6y ago
    Nit: Thomas joined Kavanaugh's opinion, not Alito's.
    - dghf 6y ago
      > ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion. -- p. 4 in the PDF. > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting. -- p. 38 in the PDF. https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
      - throwanem 6y ago
        Apparently I can't read. Good catch, thanks.
    - rrss 6y ago
      No. page 38 or so: > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting page 145 or so: > JUSTICE KAVANAUGH, dissenting.
- afterburner 6y ago
  You must be new to the politics of the current Supreme Court. A certain number will always lean away from progress. EDIT: apparently some people think justices of the Supreme Court are "above" politics. Laughable, though they do an excellent job of covering with a lot of legalistic-sounding justification.
andrewla 6y ago
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 6y ago
  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 6y ago
    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.
hvs 6y ago
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 6y ago
  >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 ...
  - SamuelAdams 6y ago
    Yes, but the case presented focused solely on the definition of "sex" in title VII so that's what the court ruled on. As programmers its easy for us to take it up to a more abstract level, but in the legal world I guess that's difficult to do.
    - pc86 6y ago
      It's not that it's more difficult to do, it's that you generally don't do it. SCOTUS in particular will not respond to, mention, or address anything even approaching a hypothetical scenario, which is sometimes frustrating when the specifics of a case aren't just ride for larger sweeping changes that society may want. You'll often hear of proponents of one reform or another saying that a given case is perfect for SCOTUS because it lines up very closely with their policy objectives.
      - rodw 6y ago
        I don't have an example off the top of my head, but I'm pretty sure I've seen arguments presented to the SCOTUS that are absolutely based on hypotheticals, including hypotheticals introduced by the justices themselves. EDIT: Here's a very recent one: https://www.msn.com/en-us/news/us/supreme-court-justice-s-coronavirus-vaccine-hypothetical-could-be-a-window-into-the-future/ar-BB13HDlP https://www.msn.com/en-us/news/us/supreme-court-justice-s-co...
nsporillo 6y ago
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 6y ago
  Kavanaugh's separate dissent at 145.
  - koheripbal 6y ago
    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 6y ago
      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.
Joeri 6y ago
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?
- tryptophan 6y ago
  No. It's literally the supreme court just doing it's job.
- antishatter 6y ago
  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 6y ago
    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".
- duxup 6y ago
  These are all judges who have largely spent their time reading practicing law. This is almost certainly SCOTUS doing what SCOTUS does based on how they read the law and not some one off political rebuke or any sort.
yodon 6y ago
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 6y ago
  > 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.
  - Fjolsvith 6y ago
    > (e.g. employers banning being married to a women is only "banned" for one gender and not the other, making it sexual descrimination) What about in a state that allows same sex marriage?
js2 6y ago
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
Amicius 6y ago
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.
- raincom 6y ago
  Many a case law is all about retroactively "understand the term". That's why oftentimes, law is called judge-made law.
- jakkyboi 6y ago
  They aren't re-anything as far as I can read. They concede this to say that sex does not mean gender or sexual orientation, to make the point that then by extension, those two categories are protected from discrimination based on preconceived notions of sex. In the case of someone being gay and fired for this reason, the discrimination lies in the fact that if a gay man was a woman, the employer would not have fired this person based on them being attracted to men. It's an extension, not reinterpretation.
- notahacker 6y ago
  > 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
LatteLazy 6y ago
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 6y ago
  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.
  - deleted 6y ago
    [deleted]
- zeroonetwothree 6y ago
  Religion is certainly within your control.
  - deleted 6y ago
    [deleted]
onetimemanytime 6y ago
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"
rayiner 6y ago
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-workers-supreme-court.html https://www.nytimes.com/2020/06/15/us/gay-transgender-worker... > “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.”
- js2 6y ago
  Based on the reasoning used by the dissent in this case, they would have similarly dissented in Loving v. Virginia.
  - rayiner 6y ago
    This is superficially true, but very different considerations applied in the two contexts. Loving was a 14th amendment case, while this was a statutory case. In statutory cases the Supreme Court is more deferential to what Congress intended to say, because Congress can easily change the statute if it wants to change the outcome. Moreover, in Loving there was the issue that marriage has long been considered one of the most fundamental rights in the Anglo-American tradition.
throwawaysea 6y ago
From https://www.wsj.com/articles/supreme-court-rules-for-gay-rights-in-the-workplace-11592230310 https://www.wsj.com/articles/supreme-court-rules-for-gay-rig...: > “‘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 6y ago
  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.
  - mrmuagi 6y ago
    In your examples you can see the discrimination clearly, but this made me ponder. How about scenarios where the discrimination isn't overtly stated by the discriminators? Let's assume they aren't really upfront and ask you about your sexual preference (Which is very odd since asking personal questions is a big NO-NO in Canada, where I live). Having this law will help in your case, but how can a general person even try to pinpoint why they were fired, especially so if they have an 'at will' status of employement?
  - teraflop 6y ago
ErikVandeWater 6y ago
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 6y ago
  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 6y ago
    There's nothing legally stopping someone from using whichever restroom they want in most states.
- koheripbal 6y ago
  My answer is that we have better things to do than to argue about dress codes. I feel like the media and social media is making people obsess about trivialities and edge cases.
- belorn 6y ago
  We had that discussion here in Sweden a decade ago. Buss drivers had a dress code that required pants for men, while women could choose between pants or skirt. That year it was extra hot weather during the summer and quite a few male drivers were complaining about the heat, and some even went as far as bringing a kilt as a way of protest against the discriminating dress code. If I remember right the buss company involved later changed the dress code in order to allow for shorts. Male drivers complying with the female dress code during that year in front of clients generated quite a few news article on the topic.
seemslegit 6y ago
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
Threeve303 6y ago
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 6y ago
  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 6y ago
    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.
- TheCoelacanth 6y ago
  Much like not every murderer is caught, this law will not successfully be enforced 100% of the time. That does not mean that the law is pointless or that it doesn't offer any protection.
intopieces 6y ago
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 6y ago
  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 6y ago
    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.

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.

Beltiras 6y ago
I'd be surprised if that EO won't come up for judicial review before SCOTUS before too long. And it probably gets the same 6-3 treatment.
jaziek 6y ago
I've seen some people floating the idea that this ruling also nullifies that rollback, as the affordable care act does not allow discrimination of provision of care based on sex, and if this ruling is centered around the whether or not the word sex encompasses any characteristic of which sex is a part, then the same logic would apply to the ACA also.
enraged_camel 6y ago
That ruling is dead on arrival now - it's only a matter of time before it's enjoined by federal district courts for directly contradicting the Supreme Court's interpretation of the relevant statutory language.
- nkurz 6y ago
  I tried to resurrect your parent post, but it remains dead. So I'll ask here instead. > I expected to be downvoted by conservatives, but not this fast. What makes you think that you were downvoted by conservatives? You probably were downvoted by people who disagreed with you, but I don't see any particular reason to believe that they are conservative. As someone else pointed out downthread, it seems equally likely that you would be downvoted for saying something that could be construed as positive about Trump, or for that matter by someone who felt that you should be downvoted for even mentioning his name. Or maybe you are right. I'd love for downvotes to require some sort of public attribution of reasoning to avoid amplification of misunderstanding.
  - enraged_camel 6y ago
    How can "it just got harder for Trump to brag about his SCOTUS" picks be construed as a positive statement about Trump?
Pixeleen 6y ago
> 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 6y ago
  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
koheripbal 6y ago
> SCOTUS rulings are much more durable than executive actions though. ...and yet, they aren't meant to be. The system was designed such that the legislative branch would produce the most fundamental and enduring changes to our system of laws. Looking to the SCOTUS to make legal/societal reforms is not only counter to the design, it's dangerous as it enables one branch to usurp the power of another. Moreover because they are appointed for life and appointed by the president, this new paradigm effectively erodes the most deliberative and democratic institution we have - the Legislature. It's sad to see such judicial advocacy so broadly applauded. I suspect the reason the courts are so ready to act to change law, rather than arbitrate law, is a consequence of the ineffectiveness of congress. ...which is, in turn, a consequence of the political polarization worsening in America. I wish we could return to an environment of more constructive in-depth discussions and less a war of emotional hyperbolic soundbites.

enraged_camel 6y ago

This is the biggest LGBT rights victory since gay marriage, and the biggest victory for transgender rights ever. The Federalist Society must be absolutely furious that Gorsuch sided with the liberal justices. And it just got a lot harder for Trump to brag about his SCOTUS picks. edit: lol, I expected to be downvoted by conservatives, but not this fast. You guys continue to amaze me. :)

doublesCs 6y ago
As usual, completely baffling downvoting on HN. I found this remark very appropriate. I didn't expect this from Gorsuch at all. If anything I would like this comment to be expanded (e.g. by adding context about the Federalist Society which I've never heard of)
- afterburner 6y ago
  > Federalist Society They basically vet judges to serve as movement conservative activists on the Supreme Court. Looking for the "right" (and right-wing) stances, and complete absence of left-leaning progressive talk. Also kow-towing to corporate interests and displays of extreme loyalty to right-wing, corporate, "old boys", or evangelical thought are bonuses.
- duxup 6y ago
  I didn't vote but I'll venture to guess the comment's sort of cheer leading a cause / for / against various groups was the reason for the votes. HN users tend to like things "distilled" a bit more, although maybe that's not the case and I just feel that way.
  - doublesCs 6y ago
    > I didn't vote but I'll venture to guess the comment's sort of cheer leading a cause / for / against various groups was the reason for the votes. The way I read it, he's just saying that conservatives didn't expect Gorsuch's decision. That is not cheering anything.

bkor 6y ago

> 6-3 ruling represented the biggest moment for LGBT rights Why did 3 vote against? Is there an explanation for their reasoning?

rrss 6y ago
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf Alito and Kavanaugh wrote dissenting opinions. Thomas joined with Alito's opinion.
- throwanem 6y ago
  Nit: Thomas joined Kavanaugh's opinion, not Alito's.
  - dghf 6y ago
    > ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion. -- p. 4 in the PDF. > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting. -- p. 38 in the PDF. https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
    - throwanem 6y ago
      Apparently I can't read. Good catch, thanks.
  - rrss 6y ago
    No. page 38 or so: > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting page 145 or so: > JUSTICE KAVANAUGH, dissenting.
afterburner 6y ago
You must be new to the politics of the current Supreme Court. A certain number will always lean away from progress. EDIT: apparently some people think justices of the Supreme Court are "above" politics. Laughable, though they do an excellent job of covering with a lot of legalistic-sounding justification.

andrewla 6y ago

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 6y ago
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 6y ago
  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.

hvs 6y ago

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 6y ago
>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 ...
- SamuelAdams 6y ago
  Yes, but the case presented focused solely on the definition of "sex" in title VII so that's what the court ruled on. As programmers its easy for us to take it up to a more abstract level, but in the legal world I guess that's difficult to do.
  - pc86 6y ago
    It's not that it's more difficult to do, it's that you generally don't do it. SCOTUS in particular will not respond to, mention, or address anything even approaching a hypothetical scenario, which is sometimes frustrating when the specifics of a case aren't just ride for larger sweeping changes that society may want. You'll often hear of proponents of one reform or another saying that a given case is perfect for SCOTUS because it lines up very closely with their policy objectives.
    - rodw 6y ago
      I don't have an example off the top of my head, but I'm pretty sure I've seen arguments presented to the SCOTUS that are absolutely based on hypotheticals, including hypotheticals introduced by the justices themselves. EDIT: Here's a very recent one: https://www.msn.com/en-us/news/us/supreme-court-justice-s-coronavirus-vaccine-hypothetical-could-be-a-window-into-the-future/ar-BB13HDlP https://www.msn.com/en-us/news/us/supreme-court-justice-s-co...

nsporillo 6y ago

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 6y ago
Kavanaugh's separate dissent at 145.
- koheripbal 6y ago
  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 6y ago
    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.

Joeri 6y ago

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?

tryptophan 6y ago
No. It's literally the supreme court just doing it's job.
antishatter 6y ago
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 6y ago
  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".
duxup 6y ago
These are all judges who have largely spent their time reading practicing law. This is almost certainly SCOTUS doing what SCOTUS does based on how they read the law and not some one off political rebuke or any sort.

yodon 6y ago

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 6y ago
> 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.
- Fjolsvith 6y ago
  > (e.g. employers banning being married to a women is only "banned" for one gender and not the other, making it sexual descrimination) What about in a state that allows same sex marriage?

js2 6y ago

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

Amicius 6y ago

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.

raincom 6y ago
Many a case law is all about retroactively "understand the term". That's why oftentimes, law is called judge-made law.
jakkyboi 6y ago
They aren't re-anything as far as I can read. They concede this to say that sex does not mean gender or sexual orientation, to make the point that then by extension, those two categories are protected from discrimination based on preconceived notions of sex. In the case of someone being gay and fired for this reason, the discrimination lies in the fact that if a gay man was a woman, the employer would not have fired this person based on them being attracted to men. It's an extension, not reinterpretation.
notahacker 6y ago
> 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

LatteLazy 6y ago

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 6y ago
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.
- deleted 6y ago
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zeroonetwothree 6y ago
Religion is certainly within your control.
- deleted 6y ago
  [deleted]

onetimemanytime 6y ago

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"

rayiner 6y ago

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-workers-supreme-court.html https://www.nytimes.com/2020/06/15/us/gay-transgender-worker... > “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.”

js2 6y ago
Based on the reasoning used by the dissent in this case, they would have similarly dissented in Loving v. Virginia.
- rayiner 6y ago
  This is superficially true, but very different considerations applied in the two contexts. Loving was a 14th amendment case, while this was a statutory case. In statutory cases the Supreme Court is more deferential to what Congress intended to say, because Congress can easily change the statute if it wants to change the outcome. Moreover, in Loving there was the issue that marriage has long been considered one of the most fundamental rights in the Anglo-American tradition.

throwawaysea 6y ago

From https://www.wsj.com/articles/supreme-court-rules-for-gay-rights-in-the-workplace-11592230310 https://www.wsj.com/articles/supreme-court-rules-for-gay-rig...: > “‘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 6y ago
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.
- mrmuagi 6y ago
  In your examples you can see the discrimination clearly, but this made me ponder. How about scenarios where the discrimination isn't overtly stated by the discriminators? Let's assume they aren't really upfront and ask you about your sexual preference (Which is very odd since asking personal questions is a big NO-NO in Canada, where I live). Having this law will help in your case, but how can a general person even try to pinpoint why they were fired, especially so if they have an 'at will' status of employement?
- teraflop 6y ago

ErikVandeWater 6y ago

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 6y ago
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 6y ago
  There's nothing legally stopping someone from using whichever restroom they want in most states.
koheripbal 6y ago
My answer is that we have better things to do than to argue about dress codes. I feel like the media and social media is making people obsess about trivialities and edge cases.
belorn 6y ago
We had that discussion here in Sweden a decade ago. Buss drivers had a dress code that required pants for men, while women could choose between pants or skirt. That year it was extra hot weather during the summer and quite a few male drivers were complaining about the heat, and some even went as far as bringing a kilt as a way of protest against the discriminating dress code. If I remember right the buss company involved later changed the dress code in order to allow for shorts. Male drivers complying with the female dress code during that year in front of clients generated quite a few news article on the topic.

seemslegit 6y ago

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

Threeve303 6y ago

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 6y ago
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 6y ago
  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.
TheCoelacanth 6y ago
Much like not every murderer is caught, this law will not successfully be enforced 100% of the time. That does not mean that the law is pointless or that it doesn't offer any protection.

intopieces 6y ago

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 6y ago
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 6y ago
  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.