But the challenge was based on a statute. The court is supposed to respond to the actual claim in front of it.
Interestingly (perhaps), while you keep referring to it as based on “which gender you love”, that’s not why I’m inclined to agree with you (and, actually, I find it the least persuasive argument). To me, it seems pretty clear that a lot of “sexual orientation discrimination” really is “sex stereotyping” – lesbian women who are too masculine; men who are too feminine and seen as gay; straight women who are viewed as lesbians because they are too masculine, etc. This type of discrimination (which has very little to do with who–if anyone–you actually “love”) really does seem to be about applying stereotypes to acceptable behavior based on sex.
The practical inability to draw meaningful distinctions between the two categories is why I’d be inclined to include at least perceived sexual orientation and gender identity in “sex”. I remember reading a case (again a decade ago) that had a sentence that was something like: The supervisor called the plaintiff a “faggot” and a “woman” which, he testified, meant the same thing. What’s a court supposed to do with that?
The original claim (not by me) was that “stare decisis” made the decision a “no brainer” (to the extent that an alternative result wasn’t “actual” judging). Obviously, that wasn’t meant in a strictly technical sense, because the Supreme Court hadn’t ruled on the subject explicitly (and, as it turns out, it wasn’t really meant in a looser sense since it did not rely on any previous judicial opinions).
To the extent that Hopkins is said to demand the result, it’s certainly relevant that the courts tasked with applying it did not read it that way for decades afterwards. (And, Hopkins doesn’t appear to be cited – except for a single benign proposition – in today’s majority opinion. Alito addresses the Hopkins argument, after noting that the Court found it “unpersuasive” (presumably because it did not adopt the argument). (Dissent at p. 18)).
So, while I agree that Hopkins supported today’s outcome, not even this Court seems to think that it compelled it… much less that it was obviously so.
Yes, Gorsuch is a decent choice, one of the few good things trump did. Yes, he is conservative, but he knows the law. Unlike Kavanaugh, brought in solely to kill Roes vs Wade.
An additional thought, reading through the majority opinion, is that it’s very conduct-themed. And, in that sense, looks a bit like Hopkins. The opinion includes a bunch of hypotheticals about situations where the employee engages in the same conduct and the outcome depends on the employee’s sex. For example, from page 11:
This is somewhat similar to some of same-sex marriage arguments that we saw.
But what struck me as odd is that at least two of the plaintiffs don’t appear to present that type of discrimination claim.
Going back to the factual background: Bostock played in a gay softball league and was fired for “conduct unbecoming”. Zarda told his employer he was gay. Curiously, to me, the Court presents these cases as examples where the discrimination actually is based on sexual orientation not on “sex”.
The third plaintiff, Stephens, transitioned and that seems like it might work. If you tolerate a female employee presenting in a female manner, but not a male employee doing so, that feels more like sex stereotyping.
I guess the idea is that “being attracted to men” would be permissible for a female employee, but not for Zarda. But I don’t know how that works for Bostock – it’s not conduct rules. We don’t need to know Bostock’s sex… just that the softball league was for homosexuals.
This case is about whether an employer can fire employees for being gay/trans. The Constitution doesn’t apply to relationships between private parties.
My reply would be “I’ll unfriend you, but it’s because you’re one of those absolutists who demand everyone pass your purity test.”
Falchion, you’re telling me I’m full of shit in the nicest way possible, and for that I thank you. Clearly to those more knowledgeable on the finer points of law than I, my assertion that the decision was a “no brainer” was a poor choice of words and based on poorer reasoning. That’s fair.
I understand the legal constraints under which this decision was made as well as your much more detailed points re the challenges posed by Title VII, but I will make one observation: Sometimes what is true is also obvious. If the founding principles of this country are true, then they obviously must apply to all. This fundamental understanding is – or should be – a no brainer, however they had to get there. If the SCOTUS has reached a point where it is “activist” to adhere to the underlying foundations of our Constitution, then that might say more about the SCOTUS and/or Congress than it does about the ruling itself.
Posted in another thread (and another 
):
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?
I’ll repost my response from your first thread:
I’m not entirely sure I follow your criticisms. Obviously, not allowing your son to play on the girl’s volleyball team or having different dress codes for male and female employees or requiring women to wear tops at work while allowing men to go topless (really?) or single-sex locker rooms is discrimination on the basis of sex. But I don’t see how today’s opinion makes any of those things more or less lawful.
Put differently, today the Court held that sexual orientation discrimination constitutes sex discrimination. But I don’t see how it changed whether (or when) sex discrimination is permissible.
What?!? So if a gay man has a heart attack he is not covered at any hospital under his ACA medical insurance??
Could you please more accurately describe what Trump as done? Is it just gender reassignment surgery?
So you believe that prior to today my (hypothetical) son had an unfettered right to play for the girls volleyball team or that I could use the women’s locker room and showers at work?
I also agree with Kavanaugh’s dissent. This is a hyperliteral reading of the law that was never meant to obliterate any distinction between sexes.
Using Gorsuch’s opinion, how could you write a policy justifying keeping my son off the girls volleyball team?
Sorry I missed this part. It said that it was not permissible for any reason, right? That’s how I read it.
Sexual orientation is not a protected class. But the only reason you fire gay people is because a man sleeps with other men. You wouldn’t fire that man if he was a woman, and vice versa.
So simply because you used sex as one reason, even one out of many, to take an adverse decision against someone is impermissible. That seemed clear.
So, therefore, how do you keep my son off the volleyball team? You would let him on if he was a girl, so you have used sex as a but for cause.
Your post is odd. You seem to be implying, especially when you say things like “the dissent has the better of it,” that you’ve actually read the opinion and the dissents. But then you ask a whole bunch of questions that Gorsuch addresses directly in his majority opinion, and that makes it look like you haven’t actually read it at all.
I read the whole thing and the dissents.
Gorsuch addressed my questions only by saying that they were not before the Court and would be decided in future cases, yet his rationale all but seals the deal. I don’t see how any distinction at all can be made based on sex because then sex will be one of the deciding factors and therefore prohibited.
I do not. We are well outside my area of expertise, but it has always been my understanding that Title IX permits a school to have sexually segregated sports teams (subject to a variety of exceptions and conditions, that I don’t pretend to understand).
Similarly, I tend to believe that employers have been able to maintain single-sex bathrooms, even though the access is being restricted (discriminated!) on the basis of sex.
Why would I have to let him on it? And why would this decision have changed that? I’m just not following.
It seems obvious to me that having single-sex sports teams is discriminating on the basis of sex and that not all discrimination on the basis of sex is forbidden. How does this opinion change that?
Just to follow up.
Before this decision, if you asked me about a dress code at work where men had to wear suits and ties and women had to wear professional work clothing and asked me if that was unlawful discrimination based on sex, I would have said clearly not. Because the policy is not there to act to disadvantage either men or women or subject them to higher hurdles for success in the company. While yes, literally, the policy has differing standards for the two sexes, it is not up the alleyway of what the law tries to forbid because clearly at times there is a need for different rules for the genders so the law cannot be applied hyper literally.
But after today, if you take Gorsuch at his word, then you look at all of the reasons for the dress code. One of them will have something to do with sex, so therefore it is forbidden full stop.
Can you point me to something in his opinion that suggests otherwise?
Gorsuch:
So when I want to use the women’s showers and the boss won’t let me or fires me because I do, has my sex not played a part?
Yes I can. It surely applies to separate bathrooms and locker rooms, and might also apply to dress codes as well.
The opinion notes:
As Gorsuch argues, getting fired surely counts as an injury. I don’t think that anyone would dispute this. If you dispute that getting fired constitutes an injury, let me know, and we can stop debating now.
The question then, in discussions about things like bathrooms and dress codes, becomes about whether or not separating those things out by sex constitutes an injury. Does it injure your employees to have bathrooms for men and bathrooms for women, as long as you have an adequate number of bathrooms for both groups? Does it injure your employees to have separate dress codes for men and women, provided that the two dress codes are essentially equivalent, in terms of expense and practicality?
These are issues that we might debate about, but don’t pretend that Gorsuch’s opinion completely ignores them.
I’m sorry, but where the fuck do you work, the 1950’s?
Hello, Teeming Millions!
Trump’s new order was essentially required by Franciscan Alliance v. Burwell (later Franciscan Alliance v Azar).
Here’s what happened:
The Obama administration, with Secretary Burwell at the helm of HHS, issued a rule interpreting Sec. 5557 of the Affordable Care Act’s “sex,” wording to include gender identity and sexual orientation.
The Franciscan Alliance, among others, sued HHS, saying that this reading of the rule was contrary to the plain language of the statute.
Judge Reed O’Connor, of the Northern District of Texas, agreed with the Franciscan Alliance, and issued a preliminary injunction barring enforcement of the new rule. . . not just enforcement against the Franciscan Alliance, mind you, but enforcement by the government anywhere, against anyone. The entire executive branch of the federal government was stymied, in other words, by a single federal district judge who hadn’t even had a trial on the matter.
This happened while Obama was in office, and had nothing to do with Trump.
Last year, that order was finalized. The federal court ruled that “sex,” meant only gender, not gender identity and not sexual orientation.
Of course, the case was now “Franciscan Alliance v Azar,” because in the intervening time, Obama was succeeded by Trump and Burwell by Azar.
So Trump’s rule didn’t erase anything substantive: the Obama-era rule had never been enforced, anywhere, because of the injunction.
It’s not an executive order. It’s a rule, published by HHS, announcing how they will interpret the Affordable Care Act.
This new ruling, however, should definitely affect the new HHS rule. Judge O’Connor’s reasoning in Franciscan Alliance is now in grave doubt: does “sex,” mean something different in Title VII than it does in the ACA?
The new ruling isn’t directly relevant to the ACA. But the reasoning underpinning the rule is highly relevant. The new HHS rule should be more or less dead on arrival.