Have you ever met/read Gorsuch? He was nominated for being an uber-textualist.
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As you said getting fired is an injury. If you have fired me because I used the women’s locker room, then look at Gorsuch’s opinion. Would I have been fired if you change my sex from male to female? I would not.
Therefore a violation has occurred.
Welcome back and thank you for that correction! I was just using the term that Aspenglow used.
This seems like a pretty momentous decision!
UV, I think you’re missing the injury part of the decision. As long as there’s a volleyball team for boys, your son isn’t being injured by not playing on the girls’ team, right? As long as there’s a locker room for boys, similarly no injury.
On the subject of women going topless where men can, in NY State at least, women may go topless wherever men can. That should really be the law of the land, but probably a subject for another thread.
Please let me add my welcome back to RitterSport’s.
Available time this morning did not allow, but I knew I should have checked the origins of that rule. :o Thank you for the detailed history of how we got to where we are today. I couldn’t specifically remember an executive order, but who can keep track? I appreciate your clarification.
I am glad also to learn how the SCOTUS ruling will likely affect the HHS rule. Of course, if the SCOTUS rules that the entire ACA is unconstitutional – as they may – then you may agree that the point is moot.
Never say never, of course - but I am at least a little heartened by Gorsuch here (and the various commentaries here and other places).
Maybe. Maybe not.
I admit that I’m not exactly sure how it would go, but your certitude here seems to be considerably greater than your analytical rigor.
They’d probably ask why you were fired. You’d claim that you were fired because you were a man who tried to use the women’s room. They’d probably then have to look at the circumstances leading up to this.
For example, they might ask whether there was a perfectly good men’s room that you could have used. If the answer to that question is Yes, then they might wonder why you chose, in contravention of your employer’s regulations, to use the women’s room anyway. What answer would you give? “Because I really wanted to make a point about bathrooms”?
If the underlying conditions regarding separate restrooms for men and women are not discriminatory, then the company might be found to have acted reasonably in requiring people to use the appropriate restroom, and therefore to have acted reasonably in firing someone who refused to do so.
I’m not sure exactly how such a case would come out but, contrary to your assertion, I don’t believe that the employee would have to prevail under the logic of today’s decision. To be quite frank, your legal analysis is so thin, and so full of the usual scaremongering “What about the bathrooms?” bullshit, that I’m not sure it’s worth discussing this issue with you further.
Well done and welcome back!
No, again, read the opinion; the part I cited. Let’s assume there is a separate but equal men’s locker room. So what? Let’s assume that I have repeatedly been told that because of company policy that I must use the men’s locker room. Again so what? I keep using the women’s locker room and get fired.
In my complaint, I am not alleging an injury of failing to provide me with an adequate or equal locker room. I am alleging that I was injured by getting fired which we all agree is an injury.
And to take the holding at its word, if you change my sex in the question and ask would I have been fired for going into the women’s locker room if I was a woman, the answer is clearly no. So sex was a part of the reason for my firing. It matters not, says Gorsuch, that other reasons were there for my firing, such as failing to follow employer guidelines regarding locker room use. The fact that one of the reasons was because of sex means I win.
How can you parse it differently?
Always have more thoughts 
Under this theory, I could direct my employees to cease having homosexual sex and then I could say that they were not fired because of sex or because of homosexual conduct, but for failing to follow employer directives. It makes no sense that it can be applied at just one step above.
I’m not sure how I feel about this. I’m not for discrimination against anyone but this seems to be trying to force companies to be gender-blind. That’s great for some things (different wages, unlawful termination), but is there no context in which gender can be differentiated without it being discrimination?
Go for it lol
That is what, IMHO, the decision mandates by its harsh application of the “because of …sex” language. I’m not sure why every single application of anything because of sex is not mandated by this opinion.
Some posters say that my legal analysis is thin, but I cited the main part of the Gorsuch opinion which again, IMHO, seems to leave no room for doubt. You can have twenty reasons for firing a person, but if one of them has to do with sex, as Gorsuch said, if you change the sex of the plaintiff and the firing doesn’t happens, then the plaintiff wins.
I cannot see how that can allow dress codes, locker rooms, bathrooms, and when applying the identical analysis to the same language in Title IX, girls volleyball teams and girls softball and track teams.
Again, no opinion in this thread about transgender people. A biological male, who continues to identify as male wants to hang out in the women’s locker room at work. If you fire him for doing that, one part of it was because of his sex and forbidden according to Gorsuch.
How, and more importantly why would you monitor this directive?
Instead of a drive by, maybe you can explain why firing someone for not following the employer directive of “use the men’s locker room” is different than firing someone for not following the employer directive of “no homosexual sex after hours” when the applicable law does not protect homosexual activity but discrimination “because of…sex.”?
If we assume, as we should, that the ultimate result of such a policy would cause discrimination because of sex, then why does it matter than such a policy is used as justification? The policy is still enforced “because of …sex.”
I personally would not. I don’t care about my employees’ sexual orientations. But we are assuming for the purposes of argument that an employer does want to forbid homosexuals from his employ.
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.
Really? You believe, as a general matter of principle, that it is ridiculous to make a distinction between an employer’s authority over your actions at work, on the one hand, and an employer’s authority over your actions in your bedroom, on the other?
I guess we have nothing else to talk about then. I prefer to inhabit the same logical universe as my interlocutors, and that’s clearly not happening here.
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.
And again, this assumes (as all parties and the text agree) that sexual orientation is not a protected activity in employment.
I know of no general law that an employer cannot regulate your off duty conduct, except in protected circumstances, which is not applicable here.
Ok, lemme rephrase. How/why would “they” monitor such a directive? If they disliked gay people so much, why not just come up with some other bullshit reason to fire them? Who’s that dumb to say “I’m firing you because you did gayery while off the clock”?
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.
Let’s change my prior directive so we don’t go too far out in the weeds. The new rule is “No male may attend work here while married to another male.” Also, “No woman may attend work here while married to another woman.”
And when they do they are fired, not because of sex, but because they failed to follow employer rules. Does that make any sense? Why is the last one more egregious than the former, keeping in mind that although (I think) we all agree that it is silly for any employer to care about off duty sexual conduct and marital status, it is not protected by employment law.
And further, as I said, I have no particular objection to making it the law that gay, lesbian, or transgender persons not be discriminated against at work. I don’t think it is a necessary thing, but I could be convinced to support it and would not be offended if that law passed.
But to twist “because of…sex” in this way opens a giant Pandora’s box. I don’t see how Gorsuch can put this genie back in the bottle. Suppose at my job some smoking hot 20 year old woman starts working and I hear that she showers in the women’s locker room after work. I go in to get a peek. Pretty disgusting right?
But what can the employer do according to Gorsuch? I would not be punished if I was a women, even a lesbian woman who wanted a peek, from going in an occupying the shower next to her. Any action taken against me would be, at least in part, because I am a male. Forbidden says the good Justice Gorsuch.
I really don’t think he thought through this. Yeah, he said another day to decide these things, but his holding will be tossed back at him.