# 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:** 5
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [April 6, 2017, 4:54am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/81 "2017-04-06T04:54:58Z")
> [@Left\_Hand\_of\_Dorkness](#): > > But the other question is, “Are you firing a woman for doing something that you wouldn’t fire a man for doing?” In general, that’s not an okay thing to do. But the outcome of the case depends entirely upon what one defines the “something” to be. If the something is defined to be “dating a woman,” then it looks like there’s sex discrimination. If the something is defined to be “dating someone of the same sex,” then it looks a lot less like sex discrimination, since a man would have been fired for doing the same thing. > [@DSYoungEsq](#): > > Again, as I said in my post, you don’t get to say “you can’t draw that distinction because there’s some other distinction that I think is better to draw.” You must attack the legal argument in favor of the distinction being drawn (gender discrimination requiring judicial remedy). Another court might make a different distinction (as indeed the Supreme Court did with the same-gender marriage case). But that’s not relevant here. Again, I think the weakness in the distinction the Seventh Circuit draws is that it incorrectly purports to be analyzing a change in only one variable (sex) when in fact its counterfactual changes two (sex and sexual orientation) – and the second, unacknowledged variable happens to be the very question at issue. As I think about it, I think that also distinguishes the _Loving_ case, where there really was only one variable at issue (race). I’m not sure if the flaw I’m pointing out is enough to change the outcome, but it might well be something that opponents focus on at the Supreme Court. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [April 6, 2017, 7:15am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/82 "2017-04-06T07:15:06Z")
> [@Tom\_Tildrum](#): > > Again, I think the weakness in the distinction the Seventh Circuit draws is that it incorrectly purports to be analyzing a change in only one variable (sex) when in fact its counterfactual changes two (sex and sexual orientation) – and the second, unacknowledged variable happens to be the very question at issue. As I think about it, I think that also distinguishes the _Loving_ case, where there really was only one variable at issue (race). But, again, the _Loving_ case involved a white guy who wanted to marry a woman of another race. You can analyze a change in one variable (race), by saying “but if he were black, then he _could_ marry that woman” – but the counterfactual involves a second variable that happens to be the very question at issue: “what if he were black, and wanted to marry – well, not _that_ woman, but a woman of a different race?” The whole point was that it was about his race and his, uh, ‘racial preference’. Or maybe ‘racial orientation’. Or something. Just like in the current case, you get one answer if you change one variable (talking solely in terms of the individual’s race or sex) and things get weird if you also change the unacknowledged variable (talking in terms of that individual desiring someone of a different race or the same sex). ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [April 6, 2017, 9:15am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/83 "2017-04-06T09:15:28Z")
> [@Richard\_Parker](#): > > So, for debate: Did they get it right? It sounds like they got it right to me. ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [April 6, 2017, 10:10am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/84 "2017-04-06T10:10:16Z")
> [@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. One might consider that he prefers that approach because it suits his political purposes rather than being arrived at via some impartial consideration of the law, but then I suspect that’s probably true for most of us. > [@CarnalK](#): > > Look up sodomy laws and homosexuality being listed in the \* Diagnostic and Statistical Manual of Mental Disorders\*. Ironically the initial inclusion of homosexuality into the DSM was a _progressive_ step at the time. The previous assumptions were that “homosexual behaviour is deviant (and thus bad) behavior” and “homosexuals are purposefully engaging in bad behavior”, leading to the view that the behavior should be criminalized as a deliberate, bad act. The argument for inclusion into the DSM involved changing the second assumption to “homosexuals are engaging in bad behavior due to impulses beyond their control” - the behavior was still seen as deviant and bad, but there was an acknowledgement that homosexuality was not a choice, therefore homosexuals suffered from a mental illness that drove them to commit these “bad acts”. By the time decades later the arguments were being made to remove it from the DSM, it was on the basis of the first assumption being challenged - homosexual behavior was no longer seen as “bad” (to the extent that it represented a danger of some kind to society) and thus it was not in itself the result of a mental illness. I’m not sure if it leaves me agreeing or disagreeing with **Bricker** in thinking (and bear in mind IANAL) that arguing on the basis of flawed knowledge or assumptions at the time the initial laws were drafted is a stronger one than the sexual discrimination angle. Certainly if one assumed that homosexuals were either criminal deviants (pre-DSM) or mentally ill (DSM) one would not expect for them to be accommodated by any legislation that might otherwise be seen to affect them were those assumptions not applicable. Which, presumably, is how we end up with the 14th Amendment being applied in places the original drafters never envisioned - when the assumptions that would prevent the 14th from being applied break down, it is right to question whether the _status quo_ is correct. ---
**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, 10:42am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/85 "2017-04-06T10:42:25Z")
> [@Tom\_Tildrum](#): > > But the outcome of the case depends entirely upon what one defines the “something” to be. If the something is defined to be “dating a woman,” then it looks like there’s sex discrimination. If the something is defined to be “dating someone of the same sex,” then it looks a lot less like sex discrimination, since a man would have been fired for doing the same thing. “Of the same sex” gets back to referring to the sex of the person doing the job, not to the act itself. Anyway, if the law allowed dodges like this, all sorts of discrimination would be allowed: “Your honor, I only hire women to do secretarial work because that’s work appropriate for someone of that sex, and I hire men for factory floor work because that’s work appropriate for someone of that sex. There’s no discrimination!” ---
**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, 11:28am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/86 "2017-04-06T11:28:27Z")
> [@BigT](#): > > I think that, if there is more than one possible interpretation, your duty to what you believe is right takes over. You should be aware that what “you think,” is of little persuasive value 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, 11:34am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/87 "2017-04-06T11:34:35Z")
> [@Little\_Nemo](#): > > 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. Yes. So then the question becomes: by what analytical method do we suss out what those limits are? I contend that fidelity to our system of representative democracy includes determining what we thought we were approving when we enacted the language. When new factual situations arise, we should apply the text as closely as we can; when an interpretation is urged that was known at the time and not used, it should not be sprung as newly permissible. ---
**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, 11:40am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/88 "2017-04-06T11:40:17Z")
> [@Bricker](#): > > I contend that fidelity to our system of representative democracy includes determining what we thought we were approving when we enacted the language. Not only do I believe that the opinions of the living should outweigh the opinions of the dead, thus we should prioritize modern judgment over historical judgment; I think that’s going to hold true in the future as well. If somehow I became a legislator (if nominated I will not run etc., just imagine), and if I wrote a law that lasted beyond my lifespan, I would hope that people of the future would figure out how best to use it to guide their lives given their technological and social context, rather than obsessing over what a dead dude who’d never even encountered neural jack technology or the AI rights philosophy would have thought. ---
**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, 11:42am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/89 "2017-04-06T11:42:36Z")
> [@Gyrate](#): > > One might consider that he prefers that approach because it suits his political purposes rather than being arrived at via some impartial consideration of the law, but then I suspect that’s probably true for most of us. It is! But that political purpose is fidelity to the notion of self-governance, not “Democrats v. Republicans.” I oppose judicial creation of substantive law even when the result is one that as a matter of policy I’d prefer. In other words, the best thing about this country is – or should be – our ability to replace politicians who do things we don’t like, or sweep in politicians we do like. The House, the Senate, and the White House are responsive to our votes. In any four year we are guaranteed to select a President, the whole of the House twice, and two-thirds of the Senate. THAT is the political purpose I favor: that we retain that ability to replace the makers of substantive law. ---
**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, 11:46am UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/90 "2017-04-06T11:46:51Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Not only do I believe that the opinions of the living should outweigh the opinions of the dead, thus we should prioritize modern judgment over historical judgment; I think that’s going to hold true in the future as well. If somehow I became a legislator (if nominated I will not run etc., just imagine), and if I wrote a law that lasted beyond my lifespan, I would hope that people of the future would figure out how best to use it to guide their lives given their technological and social context, rather than obsessing over what a dead dude who’d never even encountered neural jack technology or the AI rights philosophy would have thought. Sure! But the living select new legislators every two years. I don’t mind at all when the legislators use technological and social contexts to craft changed laws. That’s exactly their role. What you’re saying is that sometimes they don’t pick the social contexts you want. And judges do. But, if that should change, you’re happy to have the legislators do the changing and the judges that thwart your desired direction stifled. Your view is not so much “We, The People,” as it is “We, the Enlightened People that Agree With Me.” ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [April 6, 2017, 12:05pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/91 "2017-04-06T12:05:01Z")
> [@Bricker](#): > > It is! > > But that political purpose is fidelity to the notion of self-governance, not “Democrats v. Republicans.” I oppose judicial creation of substantive law even when the result is one that as a matter of policy I’d prefer. > > In other words, the best thing about this country is – or should be – our ability to replace politicians who do things we don’t like, or sweep in politicians we do like. The House, the Senate, and the White House are responsive to our votes. In any four year we are guaranteed to select a President, the whole of the House twice, and two-thirds of the Senate. > > THAT is the political purpose I favor: that we retain that ability to replace the makers of substantive law. Which doesn’t really address the issue of the second half of my post and still looks like an excuse to slow the rate of change. And also relies on the assumption of a level playing field with regard to voting which, as you are aware since there’s a giant thread on it in which you are intimately involved, is not as sound an assumption as it could be. ---
**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, 12:06pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/92 "2017-04-06T12:06:42Z")
> [@Bricker](#): > > What you’re saying is that sometimes they don’t pick the social contexts you want. And judges do. > > But, if that should change, you’re happy to have the legislators do the changing and the judges that thwart your desired direction stifled. Your view is not so much “We, The People,” as it is “We, the Enlightened People that Agree With Me.” Yes, I’ll be happy to have my desired direction furthered, and my undesired direction thwarted. I have very little faith in “we the people,” as that’s the group that approved slavery, and that’s the group that approved Jim Crow, and that’s the group that approved all sorts of horrors in our history. I don’t wish ill on people who vote for oppressive policies. I just wish powerlessness for them in this particular area. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [April 6, 2017, 12:12pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/93 "2017-04-06T12:12:57Z")
I agree with **LHoD** ’s approach, for the most part, since I think that’s what’s happening anyway (again, for the most part), and that’s what will always happen, for the most part. I don’t believe or trust that anyone has a perfect handle on what text means in all cases, since language can be interpreted in many ways. With this in mind, I’m inclined to go with whatever approach (which might be different in different circumstances) that leads to the best outcome. Sure, others might disagree – but I see no way around that. I could _pretend_ to value some magical perfect process of interpretation, but I wouldn’t actually believe it exists. There’s no possibility that I can see other than taking action and interpretation for the best outcome. ---
**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, 12:35pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/94 "2017-04-06T12:35:36Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Yes, I’ll be happy to have my desired direction furthered, and my undesired direction thwarted. I have very little faith in “we the people,” as that’s the group that approved slavery, and that’s the group that approved Jim Crow, and that’s the group that approved all sorts of horrors in our history. That’s fine, too. But then I’d suggest your arguments simply reduce to, “This is what I think the best outcome is,” in all cases. If Voter ID, for example, consistently produced an elected legislature that enacted your preferred policies, then you’d favor it? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 6, 2017, 12:52pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/95 "2017-04-06T12:52:36Z")
> [@Bricker](#): > > I argue that unelected judges don’t have such a role. Updating old statutes and avoiding statutory obsolescence is the proper burden for Congress. It’s not “updating” old statutes, it’s interpreting the word “sex” in the statute. And while I stand in awe of your ability to glean the intent of hundreds of individual legislators and the people they represent when they enacted the statute, maybe it would help you out to read Flaum’s concurring opinion. He takes a textualist approach, which I would think would appeal to you, and reaches the same conclusion as the majority. “The Court made clear that “[t]he critical inquiry … is whether gender was a factor in the employment decision” when it was made. Id. at 241 (emphasis added). So if discriminating against an employee because she is homosexual is equivalent to discriminating against her because she is (A) a woman who is (B) sexually attracted to women, then it is motivated, in part, by an enumerated trait: the employee’s sex. That is all an employee must show to successfully allege a Title VII claim.” He goes on to compare it to race discrimination, quotes Holcomb v. Iowa College, and says: "There, the court concluded that the college had violated Title VII after firing a white basketball coach because of his marriage to a black woman. The court explained, “[W]here an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” He finishes: “The same principle applies here. Ivy Tech allegedly refused to promote Professor Hively because she was homosexual—or (A) a woman who is (B) sexually attracted to women. Thus, the College allegedly discriminated against Professor Hively, at least in part, because of her sex. I conclude that Title VII, as its text provides, does not allow this.” ---
**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, 1:14pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/96 "2017-04-06T13:14:14Z")
> [@Hamlet](#): > > He takes a textualist approach, which I would think would appeal to you, and reaches the same conclusion as the majority. Yes, so did I. Although not the same line of reasoning. I’m disagreeing with Posner, not the result, while simultanously cheering Posner’s honesty. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 6, 2017, 1:25pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/97 "2017-04-06T13:25:27Z")
> [@Bricker](#): > > Yes, so did I. Although not the same line of reasoning. I’m disagreeing with Posner, not the result, while simultanously cheering Posner’s honesty. I don’t follow. Do you agree with this statement: “The question before us is not whether this court can, or should, “amend” Title VII to add a new protected category to the familiar list of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence.” ---
**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, 1:31pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/98 "2017-04-06T13:31:31Z")
> [@Hamlet](#): > > I don’t follow. Do you agree with this statement: “The question before us is not whether this court can, or should, “amend” Title VII to add a new protected category to the familiar list of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence.” I agree with that statement. Do YOU agree or disagree with this statement describing the majority opinion: > [@](#): > > We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 6, 2017, 1:46pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/99 "2017-04-06T13:46:40Z")
Basically, Bricker believes that oppressed minorities should continue to be treated as sub-human until they can individually persuade enough people to vote for enough candidates that support treating them well that the laws can be changed. Otherwise, the courts might actually have to do something, and that leads to total anarchy. But of course, he’s very sorry they have to go through that - it can’t be helped, we’re slaves to the process. Otherwise, imagine what horrors his own Republican party could wreak with a philosophy of judicial activism. You wouldn’t want THAT, would you? So be quiet, stay in your place, and things will get better for you eventually. :rolleyes: ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 6, 2017, 1:49pm UTC](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776/100 "2017-04-06T13:49:03Z")
> [@Bricker](#): > > I agree with that statement. Then why did you say: "if you agree that the federal judiciary has a role in carrying the burden of updating old statutes, and avoiding statutory obsolescence, then it’s fair to say the Seventh got it right. I argue that unelected judges don’t have such a role. Updating old statutes and avoiding statutory obsolescence is the proper burden for Congress." My reading of those statements, as well as other ones you made about the opinion somehow being a violation of “representative democracy”, led me to conclude that you thought this opinion was unwarranted and an usurptation of legislative power, rather than it being"… a pure question of statutory interpretation and thus well within the judiciary’s competence." Did I misinterpret your position? > [@Bricker](#): > > Do YOU agree or disagree with this statement describing the majority opinion: > We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught. I do disagree. I think Posner’s ramblings are surely great fodder for talk shows and message boards, but they’re a misstatement of what the majority opinion, and Flaum’s concurrence, actually are. They are interpretations of the word “sex” used in a statute and not some kind of stomping on the clear intent (which, as you know I think is a silly road to go down) of the 88th Congress. [Previous page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=4) [Next page](https://boards.straightdope.com/t/big-ruling-seventh-circuit-decides-sex-discrimination-includes-sexual-orientation-discrimination/783776.md?page=6)