# Supreme Court to hear case about LGBTQ employment rights **URL:** \ **Category:** Great Debates\ **Created:** [October 8, 2019, 10:15pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500 "2019-10-08T22:15:15Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [October 9, 2019, 12:26pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/21 "2019-10-09T12:26:06Z")
I think the OP sets out a pretty defensible position quite well. This strikes me as a pretty good instance of assessing how one feels about judicial activism. Full disclosure, I am quite liberal. I can think of several instances in which I’ve supported judicial activism that has balanced out overly conservative legislatures. But the problem with judicial activism is that it can work both ways. I fully support prohibiting discrimination on the basis of sexual discrimination. But it seems that the appropriate resolution is through legislation - and/or through economic/social pressure. That the Repub majority in the Senate prevents a legislative solution may warrant being addressed at the polls, rather than through the courts. Is that a feature? Or a bug? ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [October 9, 2019, 12:37pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/22 "2019-10-09T12:37:34Z")
> [@Dinsdale](#): > > I think the OP sets out a pretty defensible position quite well. This strikes me as a pretty good instance of assessing how one feels about judicial activism. Full disclosure, I am quite liberal. I can think of several instances in which I’ve supported judicial activism that has balanced out overly conservative legislatures. But the problem with judicial activism is that it can work both ways. > > I fully support prohibiting discrimination on the basis of sexual discrimination. But it seems that the appropriate resolution is through legislation - and/or through economic/social pressure. That the Repub majority in the Senate prevents a legislative solution may warrant being addressed at the polls, rather than through the courts. Is that a feature? Or a bug? It’s a feature. Otherwise we get the situation we have currently where the federal judiciary is the ultimate political prize. ---
**Author:** ![Snarky\_Kong](https://avatars.discourse-cdn.com/v4/letter/s/a183cd/32.png) [@Snarky\_Kong](https://boards.straightdope.com/u/Snarky_Kong)\ **Post date:** [October 10, 2019, 1:11pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/23 "2019-10-10T13:11:20Z")
Can sex discrimination be described like this? Employee A engages in activity X. If the acceptability of that behavior depends on the sex of A, it is discrimination. If not, describe it more accurately. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 10, 2019, 1:26pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/24 "2019-10-10T13:26:46Z")
> [@JRDelirious](#): > > Hey, I’d be all for a full-blown amendment to the effect that you can’t be discriminated against on the basis of \*anything \*not relevant to Doing The Job. One would think in AD 2019 that one would be a cakewalk, yet it isn’t. This would undermine affirmative action. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 10, 2019, 1:33pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/25 "2019-10-10T13:33:55Z")
> [@Snarky\_Kong](#): > > Can sex discrimination be described like this? > > Employee A engages in activity X. If the acceptability of that behavior depends on the sex of A, it is discrimination. > > If not, describe it more accurately. The question presented in this thread seems to be whether “x” is marrying a particular gender (e.g. if men get to marry women then so should women) or marry the same gender (anyone can marry the opposite gender but you can be discriminated against for marrying the same gender). ---
**Author:** ![Snarky\_Kong](https://avatars.discourse-cdn.com/v4/letter/s/a183cd/32.png) [@Snarky\_Kong](https://boards.straightdope.com/u/Snarky_Kong)\ **Post date:** [October 10, 2019, 1:39pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/26 "2019-10-10T13:39:21Z")
> [@Damuri\_Ajashi](#): > > The question presented in this thread seems to be whether “x” is marrying a particular gender (e.g. if men get to marry women then so should women) or marry the same gender (anyone can marry the opposite gender but you can be discriminated against for marrying the same gender). Yes, I think everyone is on the same page there. Do you have an opinion on the definition I proposed? ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [October 10, 2019, 2:11pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/27 "2019-10-10T14:11:11Z")
> [@Damuri\_Ajashi](#): > > The question presented in this thread seems to be whether “x” is marrying a particular gender (e.g. if men get to marry women then so should women) or marry the same gender (anyone can marry the opposite gender but you can be discriminated against for marrying the same gender). But, again, as I understand it we’d come down like a hammer on an employer who patiently explained to a black guy that, no, see, I’m firing you because I disapprove of interracial marriage: granted, you could say “x” is “marrying a white woman”, in which case you could sue me into oblivion because I clearly let white guys do it and explicitly fire black guys for doing it — but, well, that’s the entire reason why I’m _instead_ phrasing this as “marrying someone of a different race”. I don’t believe we’d let an employer get away with that when it comes to race; and so I don’t see why we’d let one get away with it when it comes to sex. ---
**Author:** ![Roderick\_Femm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roderick_femm/32/14875_2.png) [@Roderick\_Femm](https://boards.straightdope.com/u/Roderick_Femm)\ **Post date:** [October 10, 2019, 5:01pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/28 "2019-10-10T17:01:10Z")
> [@Snarky\_Kong](#): > > Can sex discrimination be described like this? > > Employee A engages in activity X. If the acceptability of that behavior depends on the sex of A, it is discrimination. > > If not, describe it more accurately. Usually, traditionally, sex discrimination in employment had strictly to do with the identity of the person’s sex, not because of something the person does, especially something they do outside of work. Some examples of sex discrimination (one is still legal): “You can’t work on the assembly line, you’re a woman.” “We don’t promote women to management.” “I’ll never vote for a woman for president.” “You can’t be a nurse, you’re a man.” (I don’t know if that one was ever a thing, but I wanted to give a little equal time.) Some employers had (still have?) things like morality clauses in their employment contracts that did include activity outside of work, but that is a separate consideration from sex discrimination. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [October 10, 2019, 5:28pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/29 "2019-10-10T17:28:07Z")
> [@Roderick\_Femm](#): > > 1. Including LGBTQ under “sex” wasn’t on anyone’s mind in 1964 (none of those people “existed” in 1964). It was to prevent favoring men over women (or vice versa in relatively rare cases). I don’t understand this argument. Pornhub wasn’t on anyone’s mind when they wrote the First Amendment, but Pornhub is definitely covered by the first amendment. AR-15s weren’t on anyone’s mind when they wrote the Second Amendment, but AR-15s are covered by it. Gay marriage wasn’t on anyone’s mind when they wrote the Fourteenth Amendment, but it’s covered. I could go on. What the law actually _says_ and what legislators hoped the law they voted on would or wouldn’t _accomplish_ are two different things. Courts can only rule on the former. ---
**Author:** ![Snarky\_Kong](https://avatars.discourse-cdn.com/v4/letter/s/a183cd/32.png) [@Snarky\_Kong](https://boards.straightdope.com/u/Snarky_Kong)\ **Post date:** [October 10, 2019, 5:33pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/30 "2019-10-10T17:33:16Z")
> [@Roderick\_Femm](#): > > Usually, traditionally, sex discrimination in employment had strictly to do with the identity of the person’s sex, not because of something the person does, especially something they do outside of work. > > Some examples of sex discrimination (one is still legal): > > “You can’t work on the assembly line, you’re a woman.” > “We don’t promote women to management.” > “I’ll never vote for a woman for president.” > “You can’t be a nurse, you’re a man.” (I don’t know if that one was ever a thing, but I wanted to give a little equal time.) > > Some employers had (still have?) things like morality clauses in their employment contracts that did include activity outside of work, but that is a separate consideration from sex discrimination. You have not answered the question. You did, however, give me 4 examples of sex discrimination that fit the definition I proposed. Religion is a protected class. A religion is something a person practices, not something innate about them. If you logically follow the implication of your suggestion, it should be legal to fire someone for practicing their religion even if they only do so outside the workplace? ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [October 10, 2019, 6:19pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/31 "2019-10-10T18:19:01Z")
> [@Musicat](#): > > My point is that once legislatures decide to write these laws, they readily include the broader categories. This lends credulity to the concept that it is the legislature, not the courts, that should make this determination. 50 years ago, they screwed up, out of ignorance. Nothing prevents them from correcting the error now. But do they want to? The obvious counter to this is that 50 years ago, if they had thought about sexual orientation, they would have explicitly _not_ applied the protections to people of non-hetero sexual orientations but through their ignorance they accidentally wrote laws that protected them. This sort of thing is _exactly_ what has been determined by courts in the past with respect to gender discrimination. The writers of the 14th Amendment certainly didn’t think that they were writing a law that prevented states from making gender-discriminatory law, but it turns out that they did. Because they were a little too high-minded and used words like “person” and “citizen” to describe who got rights, which it’s pretty hard to argue don’t apply to women, regardless of the general state of societal misogyny at the time. The way to determine which of these arguments prevails is not by looking at the language modern legislatures use. It’s by looking at the words in the actual law, and what they mean, both historically and presently. The fact that future laws _explicitly_ call out gender doesn’t mean that the 14th Amendment doesn’t apply to gender discrimination. Future legislatures should make it more clear exactly what rights are being granted to whom so that we can avoid the courts having to sort things out, but the failure of past legislatures to be explicit means that the court has to figure it out, not that we assume that the rights they granted are always as narrowly constrained as their minds might have been. ---
**Author:** ![bobot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bobot/32/21622_2.png) [@bobot](https://boards.straightdope.com/u/bobot)\ **Post date:** [October 10, 2019, 6:24pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/32 "2019-10-10T18:24:30Z")
> [@Roderick\_Femm](#): > > … > 4. I see no merit in the argument that firing a man because he is gay (i.e. loves men) is an instance of sex discrimination as compared to the treatment of a woman who loves men (i.e. is straight). … Well, she wouldn’t be fired “because she is gay”. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [October 10, 2019, 6:32pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/33 "2019-10-10T18:32:58Z")
> [@iamthewalrus\_3](#): > > The way to determine which of these arguments prevails is not by looking at the language modern legislatures use. It’s by looking at the words in the actual law, and what they mean, both historically and presently. This argument never seems to work when it’s pointed out that the 2nd could hardly have meant people were allowed to purchase modern firearms. ---
**Author:** ![nelliebly](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nelliebly/32/5422_2.png) [@nelliebly](https://boards.straightdope.com/u/nelliebly)\ **Post date:** [October 10, 2019, 6:51pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/34 "2019-10-10T18:51:06Z")
> [@Roderick\_Femm](#): > > “You can’t be a nurse, you’re a man.” (I don’t know if that one was ever a thing, but I wanted to give a little equal time.) A better example would be “You can’t be a stewardess because you’re a man.” A stewardess was, by definition, female. In 1971, a Supreme Court decision forced airlines to hire stewards again. The switch to the flight attendant title came later. Not that I agree with your basic argument, but I thought you might appreciate a better example. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [October 10, 2019, 6:54pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/35 "2019-10-10T18:54:44Z")
> [@OldGuy](#): > > This argument never seems to work when it’s pointed out that the 2nd could hardly have meant people were allowed to purchase modern firearms. My impression is that it works exactly the way I suggested. The courts have applied this sort of reasoning to the 2nd in a similar way. The word “arms” doesn’t just mean “the sorts of guns that existed in the 1780s”. Just as the words “nor deny to any person within its jurisdiction the equal protection of the laws.” doesn’t just mean “black men are full citizens”, which is kinda what we assume the 14th amendment framers were thinking of. Because AR-15s are undeniably “arms” just as women are “persons”. But maybe one of us is misunderstanding the other’s argument here? ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 10, 2019, 7:23pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/36 "2019-10-10T19:23:24Z")
> [@Rodrick Femm](#): > > I see no merit in the argument that firing a man because he is gay (i.e. loves men) is an instance of sex discrimination as compared to the treatment of a woman who loves men (i.e. is straight). Straightforward homosexuality is not the same as having a particular gender. On the other hand, being gender fluid or trans are directly related to gender, and for that reason I see an argument why those should be protected under Title VII. My gut reaction is exactly the opposite of yours. Discriminating against people based on sexual orientation violates Title VII, but discriminating against people who change sex during the course of employment does not violate Title VII. As **Left Hand of Dorkness** so eloquently explained, employer discrimination based on sexual orientation hinges entirely on the employer’s determination of the employee’s sex. Applying the exact same no-homosexuality rule to a person of one sex, versus if they were of the other sex, results in discrimination; therefore discrimination with a basis of sexual orientation _is_ a kind of discrimination on the basis of sex. A person who changes sex during the course of employment is entirely different. The rule in that case would be, if you change sex we can fire you. Applying that rule to a person of one sex, versus a person of another sex, gives no difference. There are valid reasons for the employer to make such a rule, especially (as in the case) if the employee is “the face” of the company. Advertising and business materials that use gendered pronouns will need to be changed. Customers will need to be informed that the person they built a business relationship has changed sex, which could be undesirable if the job qualifications are to present a static, unchanging personality. However, saying we’re firing you because this position is for men only and you’re a woman now, that would be discrimination. ~Max ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [October 10, 2019, 7:30pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/37 "2019-10-10T19:30:26Z")
> [@Max\_S](#): > > A person who changes sex during the course of employment is entirely different. The rule in that case would be, if you change sex we can fire you. Applying that rule to a person of one sex, versus a person of another sex, gives no difference. There are valid reasons for the employer to make such a rule, especially (as in the case) if the employee is “the face” of the company. Advertising and business materials that use gendered pronouns will need to be changed. Customers will need to be informed that the person they built a business relationship has changed sex, which could be undesirable if the job qualifications are to present a static, unchanging personality. Under this standard, would firing someone who changes religions during their employment not be discriminatory based on religion? I would argue that there’s more to discrimination based on a protected category than having rules that can be equally applied. The point is that the rules shouldn’t relate to the category at all unless there’s a compelling reason. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 10, 2019, 7:42pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/38 "2019-10-10T19:42:56Z")
> [@iamthewalrus\_3](#): > > Under this standard, would firing someone who changes religions during their employment not be discriminatory based on religion? Most likely it would, sometimes it would not. The burden shifts to the employer to prove that it cannot reasonably accommodate the employee without incurring undue hardship. _Ansonia Bd. of Educ. v. Philbrook_, 479 U.S. 60, 65-66. I propose the same standard be used in cases of sex change. ~Max ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [October 10, 2019, 9:09pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/39 "2019-10-10T21:09:09Z")
> [@Max\_S](#): > > My gut reaction is exactly the opposite of yours. Discriminating against people based on sexual orientation violates Title VII, but discriminating against people who change sex during the course of employment does not violate Title VII. > > As **Left Hand of Dorkness** so eloquently explained, employer discrimination based on sexual orientation hinges entirely on the employer’s determination of the employee’s sex. Applying the exact same no-homosexuality rule to a person of one sex, versus if they were of the other sex, results in discrimination; therefore discrimination with a basis of sexual orientation _is_ a kind of discrimination on the basis of sex. > > A person who changes sex during the course of employment is entirely different. The rule in that case would be, if you change sex we can fire you. Applying that rule to a person of one sex, versus a person of another sex, gives no difference. There are valid reasons for the employer to make such a rule, especially (as in the case) if the employee is “the face” of the company. Advertising and business materials that use gendered pronouns will need to be changed. Customers will need to be informed that the person they built a business relationship has changed sex, which could be undesirable if the job qualifications are to present a static, unchanging personality. > > However, saying we’re firing you because this position is for men only and you’re a woman now, that would be discrimination. > > ~Max The interesting thing about this argument is that, in making it, the speaker is conceding that it is possible for a person to change their sex - which is a philosophical sticking point for a lot of the people who are opposed to giving trans people legal protections. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 10, 2019, 9:58pm UTC](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500/40 "2019-10-10T21:58:59Z")
> [@Miller](#): > > The interesting thing about this argument is that, in making it, the speaker is conceding that it is possible for a person to change their sex - which is a philosophical sticking point for a lot of the people who are opposed to giving trans people legal protections. There has to be _some_ basis for firing the person, defendants will have a hard time convincing the courts that they just randomly decided to fire her and that decision had nothing to do with a letter saying she was a woman, not a man. A dress code violation, perhaps. I personally don’t think people should assign their own sexes. At birth, someone else decides what sex you are. It makes sense to me to have some other state-sanctioned authority declare a sex change - the doctor who performs sex reassignment surgery, for example. I’m unfamiliar with the case but if the employee had the relevant authority certify their change of sex, I don’t really care whether the employer thinks sex change is philosophically absurd. Unless the funeral home is a religious institution exempt from anti-discriminatory provisions, they need to show that it would be unreasonably burdensome to accommodate the employee. If the employee has not had the relevant authority certify a sex change, or such an authority doesn’t exist in their jurisdiction (Tennessee or W. Virginia I believe), or they identify as female while still possessing male gonads, _then_ we have a legal-philosophical issue which I am uncomfortable with the courts resolving. ~Max [Previous page](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500.md?page=1) [Next page](https://boards.straightdope.com/t/supreme-court-to-hear-case-about-lgbtq-employment-rights/841500.md?page=3)