For some reason, I didn’t get the updates to the thread.
Sure. Let’s just take one. My law firm (hypothetically) has a policy that men must wear a coat and tie to work as part of the dress code. A man in my employ consistently refuses to wear a coat and/or tie. I fired him.
He brings suit under the 1964 Civil Rights Act alleging that if he were not a man, he would not have been fired. Using Gorsuch’s language, we only have to change his sex, and see if that had anything at all to do with his firing. Under the opinion, the answers to both questions must be “yes.”
Same analysis with a man using the women’s locker room at my firm (yeah right, like I have gyms and locker rooms at my little law practice) or using the women’s restroom or wearing long hair. Same argument. Switch the sex of the man and would I fire him? No, therefore says Gorsuch, I am in violation of the law.
Even a more extreme example. A male employee waives his erect penis at other employees in the common office area. Would I fire a biological woman for waiving her erect penis? I would not as it is a biological impossibility, therefore according to Gorsuch, if I changed the sexes, no action would have been taken, and sex was at least a part of it. Yes, the waiving of the erect penis was a larger part of it, but if ANY part of it is because of sex, it is actionable.
And again, it does no good to say that I would fire a woman for exposing her vagina in the common area, because as Gorsuch says, we cannot change different facts, and the level of discrimination we look at is to the individual employee. Far from being protected because I would fire both employees for exposing their genitals, I have double exposure for discriminating against the man in the first instance and the woman in the second.
So, Bricker, what part of Gorsuch’s holding would disallow an action for any of the above?