I haven’t gotten my head around the implications of today’s Supreme Court ruling. It seems to say that discrimination against LGBTQ persons is sex discrimination and is unconstitutional. Does this stop the donald’s new proposed regulations that deny medical care to transgender people? How about discrimination against people who have had abortions? (So far only women can have abortions so it seems like that should be covered by SCOTUS’s ruling.)
Where will all this go next?
Here is what I posted in a thread I created on this:
Pretty surprising that Gorsuch and Roberts signed on. 6-3.
I have no particular qualms about the result, but it seems rather peculiar legal reasoning. It seems to state that ANY differentiation based on sex is unlawful.
I cannot see how, under this opinion, if I worked at a company with a gym, I couldn’t use the women’s locker room because the only reason I would be forbidden is because I am a man and therefore the decision to punish me would be “because of …sex.” I’m not talking about the debate over transgender use of restrooms, I am saying that men, a straight white male, born a male at birth and continues to identify as male can do it. Right? If I was a woman, I would be allowed.
It also seems that dress codes are now forbidden. I didn’t wear a coat and tie to the office? The only reason you enforce that policy is because I am a male. If I was female you would not make me wear a coat and tie, therefore you are discriminating against me because of sex. Can I wear long hair because women are allowed or have a scruffy beard on the theory that women are not required to shave their faces? Can women have unshaven legs on the theory that men are not required to shave their legs? Can women go topless on company outings in the park under the theory that men don’t have to wear shirts at the park? If you decide that in accordance with professional standards that women must wear bras, must you also require men to wear bras?
Other laws have almost identical provisions. If my high school age son wants to play on the girls volleyball team, he must be allowed lest it be said he was discriminated against because of his sex. Again, not talking about the transgender sports debate. My son is a biological male and identifies as male. If you don’t let him play, then opinion seems to clearly say that is an illegal discrimination based on sex.
The opinion is so wide that it doesn’t speak of any of this. It has a throwaway line about how it is not deciding locker room, bathroom and dress code issues, but the result of its holding acts as a hammer and cannot possibly allow any of them. Can anyone make an argument consistent with this opinion why any type of rule based on sex could survive?
As far as its result, again, I don’t have a particular objection to it, but the dissent has the better of it. If I fire both men and women equally for being gay, it seems absurd to suggest that I have animus towards both sexes equally. If I treat all genders poorly, then that is by definition not discrimination at all, not double discrimination as Gorsuch holds.
Also nobody has ever thought this law had any application to sexual orientation or gender identity. When I was in college over 25 years ago professors complained that gays had no protection under this law. They bemoaned the fact that Congress failed to cover sexual orientation. But apparently unbeknownst to anyone, including the drafters of the law, they covered homosexuality even though it was a crime in all 50 states at the time and believed to be a mental disorder. That seems absurd to me.
I mean, this stuns me coming from Gorsuch (although not Roberts) and reads like something straight out of the Warren Court. Any defenders of it?
To answer your questions, it seems that the sky is the limit under this ruling. Take the abortion thing. Under the Court’s ruling today you would have to analyze the decision to deny an abortion as a sexually based discrimination because you cannot consider abortion without considering the sex of the person. Same way with ED drugs. As Gorsuch’s opinion states, even though banning abortion or ED drugs does not have the primary motivation of discrimination based on sex, it is a consideration and that is all it takes.
I don’t think the majority actually thought this thing through.
I feel like there may be a semantic stumbling block here that we have tripped over since the days of the initial ERA proposal. The word ‘discriminate’ can have a neutral connotation (e.g. discriminate between red and green) or a pejorative one (get to the back of the bus you damned penguin). The SCOTUS decision seems to try to make that distinction, but does so clumsily. I could not do any better, though.
The reductio ad absurdam examples proposed by UltraVires are on point- can anybody propose a succinct formulation that avoids this mess?
Thanks! I should read through everything before posting.
Don’t worry about me. I prefer the back of the bus.
No, it doesn’t. It applies a federal law, Title VII. It doesn’t apply the constitution. It says nothing about what’s constitutional.
IANAL. Does the whole thing have to be re-litigated if some aspect outside Title VII arises?