# Big ruling: seventh circuit decides sex discrimination includes sexual orientation discrimination **URL:** \ **Category:** Great Debates\ **Created:** [April 4, 2017, 11:17pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776 "2017-04-04T23:17:30Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [April 6, 2017, 1:42am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/61 "2017-04-06T01:42:31Z")
> [@Bricker](#): > > Not agreed. This doesn’t provide much nuance. Could you expand on it just a tad? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [April 6, 2017, 2:06am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/62 "2017-04-06T02:06:06Z")
> [@Exapno\_Mapcase](#): > > This doesn’t provide much nuance. Could you expand on it just a tad? Have you just met Bricker for the first time? Cultural values should be reflected in laws, not by reinterpreting old laws that reflect past cultural values. If society’s values have changed then society should change the laws through the proper process. So it has to be re-written even if that’s a big job. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 6, 2017, 2:15am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/63 "2017-04-06T02:15:12Z")
> [@Bricker](#): > > Because those situations (the presence of gay people) existed in the past, but were ignored - they weren’t covered by the law, but they existed. Congress knew what they were approving, and they knew they were not approving a rule protecting gays as a Title VII class. > > . Were homosexual individuals treated as outcasts at the time? was there any real concern for public bathroom access or marriage equality? Is it not equally possible that they craffted the law to include ‘sexual orientation’ as part of the class and simply didnt feel the need to call it out ‘seperately’? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [April 6, 2017, 2:19am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/64 "2017-04-06T02:19:16Z")
> [@simster](#): > > Were homosexual individuals treated as outcasts at the time? You’re… seriously asking if homosexuals were widely discriminated against in the 1960s? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 6, 2017, 2:24am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/65 "2017-04-06T02:24:32Z")
> [@John\_Mace](#): > > Let me guess: The liberals will think they got it right and the conservatives will think they got it wrong. 🙂 > > As for me, if this is concerning the government, then yes I think they got it right. If it is concerning private individuals or businesses, then I think they got it wrong. But then, I’ve always believed that the government should confine itself to policing discrimination by the government, and not by the private sector. I realize that puts me in an odd-ball category, but so be it! > > As for whether they read the tea leaves correctly in interpreting the Supremes, I would prefer they left up to the actual Supremes to do that and not try to stretch things beyond what that august body has done. I think some people had the idea that if the government is permissive of or facilitates discrimination by private individuals, its the same thing. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 6, 2017, 2:28am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/66 "2017-04-06T02:28:25Z")
> [@Bricker](#): > > Sure. But the problem with that approach, as I see it, is that our system is based on agreeing upon a system of fashioning the law ahead of time, and not allowing you to choose the path each time that produces the result you like, > > That’s sort of the _sine qua non_ of a representative democracy, in fact. If representative democracy seems to be moving us in the direction of justice and fairness, it’s a good path to be taking. If it stops doing so, we need to look for a different path. I’m interested more in the destination than the path we take to get there. > [@](#): > > But I agree it’s not hypocritical, unless you contend that the judiciary’s changing laws in directions you don’t like is somehow not legitimate. In other words, you may abandon reliance on the judiciary, but you must also acknowledge that someone else using your tactics against you is just as entitled to use the judiciary for their ends as you are for yours. “Just as entitled”? No, in the same way that someone driving on I-40 to go shoot his ex-wife ought to be taken off the road, whereas I shouldn’t be. If you’re using the same law for poor ends, the ends delegitimize the means you’re using. > [@Bone](#): > > ETA: reply to LHoD. > > The problem with that approach is is inconsistency. That the same law could be used to reach different outcomes is a bug, not a feature. I wouldn’t call your approach hypocritical because it is outcome oriented in a consistent way, but what I would call it is dangerous. It is dangerous to the rule of law, it is dangerous to representative democracy. It is dangerous to the separation of powers. And on top of that, an outcome focused approach can be used to excuse all manner of bad behavior and governmental power grabs. > > That system functions well if its leaders are benevolent, and functions poorly if people behave like people. The system is functioning well if it’s moving us toward fairness and justice, and it’s functioning poorly if it’s moving us away from those values, as far as I’m concerned. When someone says that gay people should sit back and let their rights be trampled because they gained them in the wrong way, I have very little patience with that argument. The process does not legitimize the outcome; the outcome is a referendum on the process. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2017, 2:31am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/67 "2017-04-06T02:31:20Z")
> [@CarnalK](#): > > Have you just met Bricker for the first time? Cultural values should be reflected in laws, not by reinterpreting old laws that reflect past cultural values. If society’s values have changed then society should change the laws through the proper process. So it has to be re-written even if that’s a big job. Yup. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [April 6, 2017, 2:34am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/68 "2017-04-06T02:34:31Z")
The path matters, LHoD. If you build a highway into the jungle you make it just as easy to drive in as to drive out. Your flippant attitude towards a proper and defined process should be revolting to anyone who believes in proper governance. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 6, 2017, 2:35am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/69 "2017-04-06T02:35:35Z")
> [@Miller](#): > > You’re… seriously asking if homosexuals were widely discriminated against in the 1960s? Its an honest question - I know it seems much more prevelant in the mindset today - I have no honest idea of what the average mindset was then. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2017, 2:39am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/70 "2017-04-06T02:39:53Z")
> [@Left\_Hand\_of\_Dorkness](#): > > The system is functioning well if it’s moving us toward fairness and justice, and it’s functioning poorly if it’s moving us away from those values, as far as I’m concerned. When someone says that gay people should sit back and let their rights be trampled because they gained them in the wrong way, I have very little patience with that argument. The process does not legitimize the outcome; the outcome is a referendum on the process. Again, though, you aren’t the only one who wants to define what “fairness and justice” look like. The reason we have a system is because there are a whole bunch of people who want that job. The value of standardizing the process is that an agreed-upon method for creating law is its own reward, and if you don’t accept the current method when you dislike the results, then neither will I when I don’t. The current Senate rules disintegration is emblematic of this dissolution. Each side sees the other reject the process in favor of their desired outcome, and then feels free to breach it even more themselves . . . which, inexplicably, the first side regards as outrageous and licenses them to depart even further. Etc, etc. I realize we can run this back to the point where Jefferson felt affronted that Burr openly campaigned for President, and likely can trace it to when Achilles slew Hector. But I argue that the results of this are not generally positive. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 6, 2017, 2:42am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/71 "2017-04-06T02:42:21Z")
Also worth noting that the majority seems calculated to also require that Title VII protect gender identity claims. All the more reason for SCOTUS to take it. Thoughts on where Kennedy lands? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [April 6, 2017, 2:46am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/72 "2017-04-06T02:46:24Z")
> [@simster](#): > > Its an honest question - I know it seems much more prevelant in the mindset today - I have no honest idea of what the average mindset was then. Look up sodomy laws and homosexuality being listed in the \* Diagnostic and Statistical Manual of Mental Disorders\*. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2017, 2:49am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/73 "2017-04-06T02:49:12Z")
> [@Richard\_Parker](#): > > Also worth noting that the majority seems calculated to also require that Title VII protect gender identity claims. All the more reason for SCOTUS to take it. Thoughts on where Kennedy lands? I think Kennedy would concur in the result here, but I don’t see him adopting the majority reasoning (or the Katzmann concurrence in the 2nd circuit). I bet there’s a five-justice majority opinion that preserves the result with a limited rationale that he’d join. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 6, 2017, 2:50am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/74 "2017-04-06T02:50:47Z")
> [@Bricker](#): > > Again, though, you aren’t the only one who wants to define what “fairness and justice” look like. The reason we have a system is because there are a whole bunch of people who want that job. The value of standardizing the process is that an agreed-upon method for creating law is its own reward, and if you don’t accept the current method when you dislike the results, then neither will I when I don’t. Sure. And I’ll listen to what other folks say, and I’ll evaluate whether a change in the system creates bigger problems than it solves, absolutely. But ultimately I gotta make that call for myself, and if a system is not working toward what I consider good ends, I’m not going to support that system. And I’m certainly not going to oppose the system that has, over the last several decades, achieved many of our society’s proudest moments, out of a nebulous sense that some day the legislature might be out in front of the judiciary. When that day comes, I’ll face that day. **CarnalK** , whether you find me revolting is of less than no concern to me. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2017, 2:51am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/75 "2017-04-06T02:51:39Z")
> [@simster](#): > > Were homosexual individuals treated as outcasts at the time? was there any real concern for public bathroom access or marriage equality? > > Is it not equally possible that they craffted the law to include ‘sexual orientation’ as part of the class and simply didnt feel the need to call it out ‘seperately’? No. It’s not equally possible. It’s not even close. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [April 6, 2017, 2:59am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/76 "2017-04-06T02:59:43Z")
> [@Bricker](#): > > Yup. OK. But my point is that I believe you are factually wrong in your interpretation of how cultural values change. Not morality wrong or obtuse or of difficult political philosophy. Factually wrong in your description of the world. That’s a different argument than the ones you are dismissing. My argument is that you cannot distinguish between technological and cultural change on the factors you give. Whatever is applied to one must be logically applied to the other. ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [April 6, 2017, 3:17am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/77 "2017-04-06T03:17:15Z")
Is it perhaps worth noting in this discussion that laws against sodomy are still on the books in some places? Is that in any way relevant? ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 6, 2017, 3:20am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/78 "2017-04-06T03:20:01Z")
**Bricker** , you already told us that you agree with this on textual grounds. It was shown to you that it was sexual discrimination, and you said you agreed. Have you gone back on this, or are you just singling out something that apparently has no bearing on whether the argument is correct or not? I get that this is your pet issue. But you already know where we stand. And you claim you never argue moral issues, which you very much know this is. The law is silent on what the correct role of judges is, which means that we decide based on what we think is right–our morality. This is just as true for you. I think that, if there is more than one possible interpretation, your duty to what you believe is right takes over. This holds for everyone. You think a judge’s duty is to Scalia’s “textual originalism.” You will not convince anyone who isn’t already convinced. Especially not by taking on an issue where most of us agree with the outcome. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 6, 2017, 3:27am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/79 "2017-04-06T03:27:47Z")
> [@CarnalK](#): > > Look up sodomy laws and homosexuality being listed in the \* Diagnostic and Statistical Manual of Mental Disorders\*. Fair enough - and yes, my original thoughts were clearly naive and not very well thought out as stated. - but the laws themselves have now been struck down based on privacy - As there is no ‘right to privacy’ in the constitution, yet that same ‘right’ has been used for various other, similar, rulings. (Roe V. Wade, etc) > [@](#): > > In 2003, the Court overturned a Texas anti-sodomy law as a violation of the right to privacy and the Equal Protection Clause of the Fourteenth Amendment. In Lawrence v. Texas (2003), the Supreme Court ruled that state laws banning homosexual sodomy are unconstitutional as a violation of the right to privacy. If the ‘right to privacy’ and the ‘equal protection clause’ can be extended to matters of sexual orientation - being used to strike down countless discriminatory practices - then is it not reasonable that ‘sex’ can be extended to ‘sexual orientation’ as a plain reading of the text without any other wording in Title VII or new laws being required? It seems quite the natural extension of the intent of the law as crafted. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 6, 2017, 4:13am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/80 "2017-04-06T04:13:11Z")
> [@Bricker](#): > > The problem is that read absolutely literally, the 14th says that NO discrimination is permissible. Every person gets equal protection of the laws, be they 6, 16, or 60 years old. That’s not what the people who passed the amendment thought they were agreeing to. Read absolutely literally, the First Amendment protects the right to sacrifice virgins to volcano gods and the Second Amendment protects the right to own nuclear weapons. But society and our legal system agree that the broad rights guaranteed by these amendments do have limits. So we can prohibit six year olds from driving cars and buying cigarettes. [Previous page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=3) [Next page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=5)