George Will’s paywalled column in the Washington Post, titled “The Supreme Court’s decision on LGBTQ protections shows the conflicting ideas of textualism”, asks:
I work in a hospital and can think of a real world example I noticed in the medical field. In the United States there are no male mammography technicians. Not a low percentage, not a few, zero. Male gynecologists are common, go figure.
This seems to be a taboo which our culture and at least some women are not comfortable with. I’m okay with that; I’m not suggesting we need to start pushing young men to pursue careers as mammography technicians. Not having male techs manipulate and smash women’s breasts in medical procedures because female patients are uncomfortable with it seems completely reasonable to me.
That assumes that presidents whose views of “good” diverge from mine will also appoint neutral judges. If I support only neutral judges - who on balance are as likely to find against my interests as they are to find for my interests - and my opponents support ideologues who will always support their interests, then my interests are very rarely going to be served.
True.
But I think it’s worth pointing out here that the author of the opinion is a judge who was (a) noted for his self-described neutral, text-only philosophy before he was appointed; (b) appointed by a President who likely does not share your “good,” views, and yet (c) delivered this opinion, which painstakingly described how a neutral, textual reading of Title VII produced this result.
So what we have here is sort of a Prisoner’s Dilemma problem. You could, of course, support ideologues who favor your position only, and your opponents will predictably seek to support ideologues who favor their own position. Each side will gain judges during their political ascendency.
Or you, and the other side, could both adopt a position of selecting neutral, textual judges and move the battlefield to the legislature.
This has the benefit of vesting substantive changes to the law in the legislature, and securing the law that you like from evisceration bu judges you don’t.
The problem, though, is exactly what the prisoners face: each will benefit from being the only one to betray the other. So the solution is either both betray – to which your solution is analogous – or both stand firm, which is the analogy to mine.
Since we’re discussing an opinion by a Trump-appointed but avowedly textual judge, I argue that my approach is more desirable.
“I’ll take ‘False Dichotomies’ for $800, Alex.”
Ultra Virés, if it’s any reassurance with your various hypotheticals, Canada has had workplace employment based on sexual orientation in our human rights laws for many years, without any major disruptions. It started with Quebec in 1977 and gradually spread across the country, until by the mid-90s most of the provinces and the federal government had implemented it. I don’t recall seeing the sort of upsets you’re raising.
And where’s Clarence Thomas in all of this?
Not sure I quite understand your question. Thomas was in the minority, so he voted against the opinion of Gorsuch and the majority.
It just sticks in my craw that Thomas isn’t sensitive to discrimination issues and keeps displaying an “anti-Thurgood Marshall” approach to judgments.
Regarding Aimee Stephens, the “transgender funeral director who was fired after announcing her intention to present as a woman”, was there any background context on whether her decision to present herself differently was disruptive to the business? I generally think of a funeral director as a combination of someone who has the job of guiding a grieving family through the funeral process, and also has a side job as a salesperson. I don’t want to make biased-based assumptions, or create false imaginative scenarios. So is there any information about the role Stephens was performing presenting himself/herself as a man, and how that role would be impacted if Stephens was presenting herself/himself as a woman?
On a related note, suppose a business fired an employee stating that their employment was predicated on their presenting themselves as an attractive man. If the employee was fired for presenting themselves as an unattractive woman, would the firing run afoul of the SCOTUS decision being discussed?
I’m pretty far from being a legal scholar, and am not going to make any sort of assertions about American law.
All I know is that anything “gender based” in our employment law (which would include “looks”) has to be a “genuine job requirement”. this would be taken to mean, for example - you can look for a female as a lingerie fitting specialist.
But you could NOT look for a female as a Kindergarten Teacher.
The distinction is quite clear.
It would be pretty hard to argue that the “presenting sex” of a funeral director salesperson is a “genuine job requirement” absent some mitigating circumstances.
Correct me if I’m wrong, but isn’t the Prisoner’s Dilemma is predicated on the idea that the other party is an unknown quality - that if you have no idea how trustworthy the other person is, you’re better off assuming trustworthiness? Does the scenario still apply if you know, for a fact, that the other party is untrustworthy?
Until recently in Saudi Arabia women could not work at many jobs. Which meant the Saudi lingerie shop employees were all men. I assume they did not do fittings.
If the person was hired as an actor specifically to play the role of an attractive man, and became unable to do so, I doubt there would be any problem (though how the person presented when not acting shouldn’t be an issue). If the person was hired to perform as an erotic dancer for an audience primarily interested in watching attractive men so dance, again I doubt there would be any problem. But there aren’t a whole lot of jobs in which “presenting themselves as an attractive man” would actually be a reasonable job requirement.
The standard Prisoner’s Dilemma is that each side is in it only for themselves, and knows with certainty that the other side is exactly the same.
This is why the mathematical equilibrium is that both rat each other out. Neither side can trust the other, and so they don’t.
Both would do better if they both cooperated but there’s no mechanism available for them to trust the other. And therefore trust does not exist. If there were a way to build a mechanism that both sides could trust, both sides would be better off. Absent that mechanism, they screw each other over.
Under Title VII in the US, it’s called Bona Fide Occupational Qualification.
“*t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”
I tend to agree. Many courts have noted that some customers’ preferences for a particular gender are not BFOQ (flight attendants), but could be for others (Playboy bunnies). Hooters is an interesting case, they’ve been sued (and settled) at least a couple times for only hiring female servers, but they continue to maintain being a female is a BFOQ for them. But I doubt being a specific gender is a BFOQ for a funeral home.
Much as I’m in favor of the result, I’m very dubious about the wisdom of finding a new meaning of great significance hiding in a statute passed 56 years ago. The Framers intended such things to come by congressional action or not at all. Such lengthy reaches in textual interpretation erode support for the Supreme Court as an impartial arbiter.
It’s one thing for the Court to find the Constitution’s vague rights to be expansive, as in extending the First Amendment to cover radio and the Internet, or even finding a “right to privacy” in the penumbra of various explicit rights. But the “right” to one’s current employment is not a fundamental right. It is a statutory privilege—in fact, it’s merely the authorization to pursue a remedy if a dismissal or failure to hire is demonstrably because of race, religion, national origin, or sex. A number of states have extended this protection to sexual orientation, but Congress has so far declined to do so nationwide.
For the Court to suddenly discover that Congress meant to do so all along, in a law adopted half a century ago, is rather fishy. And the scaffolding of logic used to reach that result is very shaky. Sexual orientation is different from sex, and setting up a fact pattern in which changing the sex of the plaintiff makes a difference in the outcome doesn’t transform the words on the page to give them a meaning no legislator, nor President Johnson, nor any learned commentator for 50 years, thought they had.
Statutes must be deliberately written to be specific and knowable. “Void for vagueness” is a foundational concept in our legal system: it’s a defense if a law was written in such a way that the defendant couldn’t reasonably have known he was violating it. But now these guys have invented the idea that a statute—a statute!—is merely a balloon launched into the air and the drafters of legislation have no control over where it lands or even what its text means.
How can someone avoid violating the Civil Rights Act of 1964, if an entirely new, previously unthinkable, way of violating the law can be discovered in the text a half-century later?
IMHO, that’s exactly why we have laws so someone can legitimately take the position that “you can’t do that, that’s against the law”. Just because someone didn’t ‘dream it up’ 50+ years ago if the action fits withing the scope of the law prohibiting it, then that’s the way it should be.
Speculation that Gorsuch made this decision as a precursor to eliminating affirmative action.
Article Two of the Constitution uses the male pronoun multiple times to describe the President. Clearly, the original intent behind the writers is that the President would be male, and I’m sure many of the adopters would be aghast to think it’d be interpreted otherwise. And yet somehow we’ve all collectively decided that the text of the word “He” is actually genderless in this context, and moved on.