# Supreme Court rules for LGBTQ right to sue! **URL:** \ **Category:** Politics & Elections\ **Created:** [June 15, 2020, 2:08pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699 "2020-06-15T14:08:41Z")\ **Posts on this page:** 20\ **Page:** 5
**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:** [June 16, 2020, 3:39am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/81 "2020-06-16T03:39:30Z")
> [@UltraVires](#): > > The issue is _men who sew_. Men are a protected class. Those who sew are not. That’s ridiculous. It’s like saying dogs are a type of animal, but yellow dogs are not. Men who sew are a subclass of men. If your firing is in any way contingent on belonging to the protected class, it’s unacceptable. You can fire a man for a reason unrelated to his gender. But if your reason for firing him includes in any part his gender, nope. This goes beyond your misunderstanding the law, and moves into misunderstanding how categories work. ---
**Author:** ![Lance\_Turbo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lance_turbo/32/6156_2.png) [@Lance\_Turbo](https://boards.straightdope.com/u/Lance_Turbo)\ **Post date:** [June 16, 2020, 3:56am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/82 "2020-06-16T03:56:13Z")
> [@Left\_Hand\_of\_Dorkness](#): > > You can fire a man for a reason unrelated to his gender. But if your reason for firing him includes in any part his gender, nope. What if he’s a cleanosexual? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [June 16, 2020, 4:40am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/83 "2020-06-16T04:40:32Z")
The posts are getting ridiculous. ---
**Author:** ![slash2k](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@slash2k](https://boards.straightdope.com/u/slash2k)\ **Post date:** [June 16, 2020, 7:46am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/84 "2020-06-16T07:46:02Z")
> [@UltraVires](#): > > Your employer can usually tell you what to do off the job. If my shift starts at 8am, and I am a person subject to random drug tests, I can’t drink alcohol at 7am, even though I’m off the job and not being paid, and drinking alcohol is a legal activity. Sure you can drink at 7. You just can’t be under the influence of alcohol between 8 and quitting time. Given biological realities, that means the overwhelming majority of us cannot meet the employer’s requirements if we do drink at 7, but the employer’s regulation actually covers only what goes on during work time. > [@UltraVires](#): > > I am not discriminating against the man because he is a man, I am discriminating against him because he is a _man who sews_. Again, a very stupid and irrational employment decision, but not one contemplated or covered by any plain reading of the text of the 1964 Civil Rights Act. You fired him because a man who sews doesn’t conform to your ideas of masculine behavior, in the same way that you fired the male nurse because that job doesn’t conform to those same ideas of masculinity or traditional gender roles or whatever. You don’t object to sewing or nursing as jobs or tasks or hobbies; however, based on sex you have decided which sex “should” perform them, and object to people of the wrong sex performing them. That’s classic sex discrimination. ---
**Author:** ![Broomstick](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/broomstick/32/246_2.png) [@Broomstick](https://boards.straightdope.com/u/Broomstick)\ **Post date:** [June 16, 2020, 9:59am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/85 "2020-06-16T09:59:19Z")
> [@UltraVires](#): > > The argument put forward was that if I went to the women’s locker room, I would not be fired because I was a man but because I failed to follow a company policy. So then it should be said that I wasn’t fired because I was a man who slept with other men, but was fired for not following the company policy of no homosexual conduct off site. > > It seems the same to me and a ridiculous distinction to make. How much authority do employers have to regulate the conduct of employees who are off the clock? Yes, there are some employees, such as professional athletes who sign contracts with conduct clauses, but that’s not what I’m talking about. I’m talking about the average Joe (or Jane) who does NOT sign an employment contract, whose employee handbook and other information very clearly state that it is NOT an “employee contract”. The difference is that while man entering a woman’s locker room contrary to employer instructions might (or might not) be subject to discipline I do not see where, absent some sort of formal contract, an employer is allowed to regulate the personal and private conduct of an employee outside of work hours when that conduct does not affect and is irrelevant to job performance (you can tell someone they can’t show up to work intoxicated, for example, which affects consumption of mind altering substances prior to arrival). Thought that sort of notion went away when school districts were no longer allowed to fire women for getting married or pregnant. An employer has some rights in regulating conduct on the employment premises, but not at an employee’s home. ---
**Author:** ![Broomstick](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/broomstick/32/246_2.png) [@Broomstick](https://boards.straightdope.com/u/Broomstick)\ **Post date:** [June 16, 2020, 10:13am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/86 "2020-06-16T10:13:08Z")
> [@thorny\_locust](#): > > I’m not all that convinced that there actually is a need for gender-based dress codes. Dress codes can call for clothing suitable for the work in question without specifying who among those doing the same work is allowed to wear what. That’s what dress codes SHOULD be. For example, rather than saying “men with beards must wear beardnets in food preparation areas” they should be written “people with beards must wear beardnets in food preparation areas”. Granted, there are a vanishingly small number of women with beards, but if a woman happened to have a beard she would be subject to the same regulation written in gender-neutral terms. My own company calls for all employees to wear either black or khaki trousers, with an exception for those who only wear skirts for religious reasons. In practice, this means only women wear skirts on the job presently but if a man showed up whose religion prohibited men from wearing trousers he, too, would be allowed to opt for a skirt. I am not currently aware of any such religion, but it does leave the possibility open to accommodate such an employee. ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [June 16, 2020, 11:06am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/87 "2020-06-16T11:06:02Z")
very few places now have written dress codes for office work. Most places are business casual except for banking and lawyers and some Drs. My credit union went to business casual a while back. In the 80s Ross Perot’s EDS made men wear suit and tie and women could not wear pants. They eventually let women wear pants but I don’t know if they are business casual . Almost all tech places are business casual. I worked at a place with business casual and we got a new director of HR and she always dressed up. After a year she said we could wear business casual on Fridays, I guess she did not notice we already did that every day. She started to wear jeans on Fridays so I guess the change was just for her. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 16, 2020, 11:13am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/88 "2020-06-16T11:13:42Z")
> [@JRDelirious](#): > > Really, if as you read it the ruling doesn’t explicitly include a caveat about reasonability parmeters, it has to be assumed absolute to the point of irrational enforcement? > > The way I take it is that the criterion for fair employment practices on the basis of sexual orientation will be enforced in the same way as it has been so far for biological sex. Or how it has been in states where orientation/identity protection is already the law. AFAIK we haven’t seen M/F restrooms deemed unconstitutional nor have we rendered women unfireable. > And please don’t bring in the thing with a man just declaring himself a woman one fine morning. That’s not how any of this works. So a judge can say that I can discriminate against someone because of sex so long as I use “reasonable parameters” and a judge decides what parameters are reasonable? So a judge could decide that firing a man for using the women’s locker room is reasonable but firing a man because he sleeps with other men is not? Is this judge even pretending to interpret the law or is he writing it as he goes along? > [@Left\_Hand\_of\_Dorkness](#): > > That’s ridiculous. It’s like saying dogs are a type of animal, but yellow dogs are not. > > Men who sew are a subclass of men. If your firing is in any way contingent on belonging to the protected class, it’s unacceptable. > > You can fire a man for a reason unrelated to his gender. But if your reason for firing him includes in any part his gender, nope. > > This goes beyond your misunderstanding the law, and moves into misunderstanding how categories work. I understand this is how the law is applied and that is why it leads to absurd results such as this case. If the term “because of …sex” was cabined in the way it was understood at the time of its enactment, and how I have proposed, you wouldn’t have what has become a runaway freight train and created this behemoth in employment law. Just to use your test, if I fire a man for using the women’s locker room, does that reason “include in any part his gender” as you propose. It does. Therefore I cannot fire him for that. But I would guess that you, like some other posters would probably want to amend that to say “except those things about his gender that I personally find to be a reasonable thing to distinguish based on gender such as restrooms, locker rooms, and dress codes” but then again, you aren’t being a judge, you are writing a law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 16, 2020, 11:26am UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/89 "2020-06-16T11:26:11Z")
In my view, **UltraV** , you’re ascribing a flavor to the opinion which isn’t there. > [@](#): > > With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” So the subsequent discussion is to determine the ordinary public meaning of the employment discrimination statute. And the distillation is: > [@](#): > > 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.” This correctly describes the causation standard of Title VII. Congress crafted a broad rule, and courts should not author their own exceptions into the rule to avoid results that judges might not prefer. Now, I apologize for not capturing the various counter-examples you have offered earlier in the thread. Can I ask you to supply a reply here in which you feel you have uncovered some flaw in the preceding analysis? ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 16, 2020, 12:39pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/90 "2020-06-16T12:39:29Z")
> [@Bricker](#): > > This correctly describes the causation standard of Title VII. Congress crafted a broad rule, and courts should not author their own exceptions into the rule to avoid results that judges might not prefer. Almost as interesting as the decision itself, for me, is reading some of the commentary on various news and politics websites, and seeing the sudden sober respect for textualism among a bunch of liberal commentators, and the equally sudden excoriation of it by a bunch of conservatives. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 16, 2020, 1:44pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/91 "2020-06-16T13:44:01Z")
Good thread title / user name combo, by the way. 😃 ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [June 16, 2020, 1:50pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/92 "2020-06-16T13:50:58Z")
> [@Bijou\_Drains](#): > > Looks like Roberts is turning into a Souter type justice in some cases. Which was expected by court watchers. Roberts cares about the integrity of the court. Its the Roberts Court and what happens under it will be tagged with his name in History books. He isn’t going to let it swing wildly right or left if his vote makes a difference. Gorsuch and Kavanaugh are pro-corporate and pro-life - their reasons for being on the Court. I think Kavanaugh will turn out to be a partisan hack - Gorsuch, in cases like this, will likely cross…I hate him from my pro-choice stance, but he is an excellent legal scholar and smart. Thomas has discovered he is a black man, once again. He REALLY wanted to hear the case on qualified immunity. Again, from the point of view of my own pro-choice leanings, he isn’t what I would want on the court, but he has some surprises in him. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 16, 2020, 4:24pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/93 "2020-06-16T16:24:43Z")
> [@mhendo](#): > > Almost as interesting as the decision itself, for me, is reading some of the commentary on various news and politics websites, and seeing the sudden sober respect for textualism among a bunch of liberal commentators, and the equally sudden excoriation of it by a bunch of conservatives. Indeed. Equally interesting is how both the majority opinion and the dissent invoke a textualist analysis – obviously reaching different conclusions, which is perfectly possible when there is disagreement about the meaning of words. We are all textualists now. 🙂 ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 16, 2020, 6:17pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/94 "2020-06-16T18:17:40Z")
> [@Dangerosa](#): > > Thomas has discovered he is a black man, once again. Whatever one thinks of Thomas’s politics and his legal worldview, I think that a statement like this does him a profound disservice. Just about everything Thomas does, every argument he makes on the bench, and every decision or dissent he hands down, is a reflection of his sense of himself as a black man in the United States. And this includes both his conservative politics and his conservative jurisprudence. I understand that there has been, since the Anita Hill hearings (and even before), a tendency to dismiss or ridicule Thomas as somehow betraying or forgetting what it means to be African American, but if you read Corey Robin’s excellent book, _The Enigma of Clarence Thomas_, released last year, you find someone whose blackness has always been an indelible part of his self-image, and of his ideas about America. That doesn’t mean I agree with his politics or his jurisprudence (neither does Robin, for that matter), but he’s an incredibly complex character, something that his critics often don’t adequately appreciate. ---
**Author:** ![Ann\_Hedonia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ann_hedonia/32/319_2.png) [@Ann\_Hedonia](https://boards.straightdope.com/u/Ann_Hedonia)\ **Post date:** [June 16, 2020, 8:29pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/95 "2020-06-16T20:29:57Z")
> [@UltraVires](#): > > I’m just trying to understand the opinion, not look for practical loopholes. > > If, as some posters have suggested, the hypothetical male could get fired, not because he is male and uses the women’s locker room, but because he failed to follow the directive of “All males must use the male locker room” then it seems like a loophole you can drive a truck through. I would think that a male employee that insisted on entering the women’s restroom while it was in use by women would be guilty of harassment. ---
**Author:** ![Powers](https://avatars.discourse-cdn.com/v4/letter/p/edb3f5/32.png) [@Powers](https://boards.straightdope.com/u/Powers)\ **Post date:** [June 16, 2020, 9:53pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/96 "2020-06-16T21:53:42Z")
I, uh, have to admit I share **UltraVires** confusion over exactly how the needle is threaded here. I think perhaps his point is hard to respond to because of his tone or the specific examples chosen, but underlying it seems (to me) to be a genuine confusion. The underlying question is, what part of the opinion – aside from the part where Gorsuch simply asserts that the decision does not cover them – allows for separate-but-equal treatment of different genders (and, following on, allows employers to fire employees for violating those separate but equal rules)? Am I correct in understanding that this is not considered to be a concern because nothing about yesterday’s decision changes the existing understanding of the law as allowing such separate treatment? That is, the decision only addresses the applicability of the law to LGBT individuals fired for being LGBT, and not existing jurisprudence on the applicability of separate-gender facilities or policies? Powers &8^] ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [June 16, 2020, 10:19pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/97 "2020-06-16T22:19:00Z")
Textualism is a fundamentally amoral philosophy. I prefer judges to interpret the law in the way that is most good, whether that be textual or otherwise. Just like I prefer members of _every_ profession to do their job in the way that is most good. And before you ask, who decides what is “most good”? The judges, of course. Which is why it’s important to select good judges. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [June 16, 2020, 10:24pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/98 "2020-06-16T22:24:01Z")
> [@Powers](#): > > . . . Am I correct in understanding that this is not considered to be a concern because nothing about yesterday’s decision changes the existing understanding of the law as allowing such separate treatment? That is, the decision only addresses the applicability of the law to LGBT individuals fired for being LGBT, and not existing jurisprudence on the applicability of separate-gender facilities or policies? As I understand it, a decision like this has a “penumbra.” The most obvious and immediate result will be that lower courts will be more likely to rule against Trump in his efforts to remove LGBT protection under the Affordable Health Care Act. They can point to this precedent. So, maybe, in some future time, someone will sue over a matter similar to those having been raised here – not necessarily a man fired for sewing buttons on shirts, but perhaps a man fired for not wearing a necktie, when his female colleagues aren’t made to. Perhaps this decision will make it easier for him to win. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 16, 2020, 10:28pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/99 "2020-06-16T22:28:57Z")
> [@Powers](#): > > I, uh, have to admit I share **UltraVires** confusion over exactly how the needle is threaded here. I think perhaps his point is hard to respond to because of his tone or the specific examples chosen, but underlying it seems (to me) to be a genuine confusion. > > The underlying question is, what part of the opinion – aside from the part where Gorsuch simply asserts that the decision does not cover them – allows for separate-but-equal treatment of different genders (and, following on, allows employers to fire employees for violating those separate but equal rules)? > > Am I correct in understanding that this is not considered to be a concern because nothing about yesterday’s decision changes the existing understanding of the law as allowing such separate treatment? That is, the decision only addresses the applicability of the law to LGBT individuals fired for being LGBT, and not existing jurisprudence on the applicability of separate-gender facilities or policies? 42 U.S. Code § 2000e-2 allows for an employer to discriminate on the basis of gender when gender differences “… [are] a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." The existence of a bona fide occupational qualification was not raised by the employers in this case (or, more precisely, not a question the Court accepted for consideration). But it’s just a much a part of federal law, and just as available to employers, as the rest of Title VII. NB: my iPhone kept correcting “bona fide,” to “bona dude,” which I found very amusing. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 16, 2020, 10:33pm UTC](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699/100 "2020-06-16T22:33:03Z")
> [@Chronos](#): > > Textualism is a fundamentally amoral philosophy. I prefer judges to interpret the law in the way that is most good, whether that be textual or otherwise. Just like I prefer members of _every_ profession to do their job in the way that is most good. > > And before you ask, who decides what is “most good”? The judges, of course. Which is why it’s important to select good judges. Trump has appointed 200 Article III judges so far, including two Supreme Court justices. I invite you to consider the game theory here: if not everyone shares your view of “good,” results and “good,” judges, perhaps amoral judges committed to neutral application of the words if the law will produce reliably better results than judges appointed by Presidents whose views if “good,” diverge from yours. [Previous page](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699.md?page=4) [Next page](https://boards.straightdope.com/t/supreme-court-rules-for-lgbtq-right-to-sue/855699.md?page=6)