SCOTUS ruling on LBGT rights

From Scotusblog:

Gorsuch addressed some of the broader concerns that the employers had raised in the three cases, about the effect of the court’s ruling on issues like bathrooms in the workplace, locker rooms and dress codes. None of those issues, Gorsuch reiterated, were before the court in these cases. Instead, he stressed, the court is ruling only that an “employer who fires an individual merely for being gay or transgender defies the law.” Whether sex-segregated bathrooms or locker rooms or dress codes might violate Title VII “are questions for future cases,” Gorsuch wrote.

www.scotusblog.com/2020/06/opinion-analysis-federal-employment-discrimination-law-protects-gay-and-transgender-employees/

So the Court leaves in place dress codes for all who do not declare a gender identity that does not match their sex, while creating a special privilege to ignore dress code upon declaration of gender identity. So a female flight attendant who does not declare a "man" gender identity can be still be required to wear makeup on the job when she would prefer not to; her male colleague can declare a "woman" gender identity to opt in to wearing makeup on the job, or or not. The employee who declares gender identity has options that other employees do not.

Also, I don't believe Gorsuch addressed bona fide occupational qualifications anywhere? I share WoLF's worry about how this omission will be interpreted by lower courts , let alone individual companies and organizations either advised by HRC etc, Stonewall law style, or simply fearing being bankrupted when the extremely well-funded ACLU or similar takes them to court for having sex-specific positions.

In addition to the really scary stuff for the most vulnerable women-must a rape crisis center hire male counselors if they declare a "woman" gender identity? must male correctional officers who identify as women be allowed to supervise female inmates' showers and perform their cavity searches?I also wonder whether this opens the US up to a sort of Yaniv-in-reverse situation.

Must a waxing salon assign a male employee who declares a "woman" gender identity to touch the vulvas of women who have requested a female esthetician? And if those women object, are they to be re-educated on their bigotry, a la the hospital advice (can't remember which UK trust that was)?

I wondered about that too Longines.

Are you of the opinion it is no longer legal to enforce male/female dress codes or
Men/women dress codes, as a result of the ruling?

That would be tremendous, but it isn't my understanding.

Can you explain where they upheld the legality of sex based dress codes because I do not see that at all within the ruling.

It would be simple “but for” discrimination. The text of the ruling makes it clear that Aimees opposite sex comparator is female, as it would be for Any male person.

I understand that’s what wolf and others (myself included) feared they’d do but It’s just not in there.

An analogy might be tampon tax in the UK.

Only females are taxed (sex)
But the funds can be legitimately used to benefit males (gender)
Because the rightful beneficiaries (women and girls) have been redefined from a sex to a gender which includes males.

Tax sex, benefit gender.

I had concerns about the ruling, having read the WoLF amicus brief some time back, but I wanted to await their thoughts and analysis on the ruling to ensure I fully understood. I spent a little time doing this yesterday, and actually, I think they have it right.

It's difficult and complicated to explain and I'm trying to think of a way to put it into the simplest terms.

1. Yes, the court upheld the proper definition of biological sex. (Good)
2. But they also upheld the legality of sex-based dress codes (bad)

But then, the bait and switch.

Stephens is male, as per the court's ruling.
So the male based legally enforceable dress code ought to apply to him.
And any other sex based right should relate to his male sex which the court established.

However, the court ruled it didn't.
His sex was male, but sex based rules applied to other males, yet not him. He had a right to the 'women's' dress code.
How is this possible, given 1 and 2?

Because rights that relate to sex have been transferred into rights that belong to gender identity.
It's not a sex based dress code any more.
It's a gender identity based dress code, for women (women now deemed to be an identity not a sex).

It's possible if you migrate a sex based rule:
(this rule is for biological females)
into a 'gender identity' rule
(this is for humans of both sexes with the gender identity 'woman')
By redefining a sex based term
(Women are adult females)
Into a gender identity term
(All women are now 'people who identify as such')
And throw in the kicker assumption
(By default if you are of the female biological sex, you are now presumed to be ALSO of the gender identity woman, unless you state otherwise)

If I understand this, it's similar to what has happened in the UK.

We went from
Sex exists, here are sex based rights and rules
To
Sex exists, also gender exists, all people of a sex are henceforth presumed to also possess gender, all former rules which once related to sex now relate to gender, gender outranks sex.

Nothing helpful to add and short of time to follow links today but placemarking and appreciating learning from everyone’s posts and questions. what a resource FWR is

It's good that US law has been developed to create protected characteristics of "transgender identity" and homosexuality. However, it has come at the cost of changing the meaning of the word "sex" under US law and has incorporated into it some wibbly-wobbly concepts to do with gender stereotypical presentation. If you read the judgement you'll see that it's based on the fact that transwomen share with women "traits or behaviors that some people associate with ... [tolerated or valued] ... one biological sex but not the other". What are these "traits or behaviors"? It's gender stereotypical expression and behaving in a "feminine way". It might even be a "feminine mind" and expect some activists to argue this.

The judges wanted to provide a just and decent judgement but to deliver this they needed to base it on dodgy reasoning and have incorporated into the word "sex" aspects of stereotypical "traits or behaviors" of the opposite sex.

The significance of the judgement is how it will be applied outside of the chamber of the Supreme Court. Expect the American Civil Liberties Union and the Southern Poverty Law Center to push to turn this into a "Stonewall Law" where "sex means gender identity, the Supreme Court says so" with businesses and other entities going along with it. Of course they could resist and get the matter back up to the Supreme Court for further clarification but how many businesses and other entities faced with accepting a dodgy interpretation or entering into a legal fight will have the luxury of being able to choose the latter?

From the NY Times article:

“After today’s decision,” Justice Alito wrote, “plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.”

I'm not an expert on US law, but while it seems reassuring that the decision retains the notion of biological sex, the risk, as a few PPs have mentioned, seems to be that trans people could claim discrimination based on not being treated as if they are the sex they identify with.

The argument for not having transwomen working in a rape crisis centre or providing intimate care to women, for example, is on the basis of their sex. In that they are male-bodied. If it's prohibited to discriminate on the basis of sex, their biological sex doesn't matter and they will be allowed to do that job.

I might be wrong, but on the surface, it sounds like the upshot is that it can be used to claim that biological sex isn't relevant at all.

As a lesbian, I find there's also something unsettling about the fact the protection I'd be relying on if I mentioned a girlfriend at work would be the fact I m not a man. It still feels very heteronormative and it seems to perpetuate the idea that one woman in a lesbian relationship plays the 'man' role. I appreciate that ultimately, it gets you to the same place, but there's something quite regressive about the notion of lesbians having to claim protection on the basis of their not having been born men.

I’d like to add this ruling being but for us hugely relieving as it means Women can’t be fired for example for refusing To wear shitty women’s uniform And makeup to work. It would clearly be the simple “but-for” violation if a woman were fired for wearing a suit when a man would not be.

I read the whole ruling and am completely Reassured. Before the ruling I worried, like WOLF did that A finding against the employers would Elide and scramble definitions sex and gender, as we have seen in the US proposed Equality Act.

It did anything but. For me the key question was this: if someone were to choose to follow the opposite Sex dress code, would that violate title VII? So say, a Masculine presenting Butch woman. Or would it, as Aimee Stevens position asserted, only “count” because Aimee is trans? The ruling makes it quite clear With its repeated use of the “but-for” language, that female is the Opposite Sex comparator for Aimee Stevens, because “but-for” being male instead of female, she would not have been fired. Thus, it’s as the court put it, the simplest possible interpretation of Title VII.

This will help protect women and men who are GNC, trans people, and LGBQ people. I cannot see how it applies to single sex exemptions as those are already treated as exceptions based on sex (there must be a “bona fide occupational qualification” to advertise a job as single sex. Aimee being discriminated against because Aimees biological sex is male (When firing would not have occurred were Aimee a natal female), has literally No bearing on single sex occupations, prisons, or anything else. If anything it solidifies that Aimee, being natal male or this ruling makes no sense, might rightly be barred from such Female sex specific occupations.

I do not understand WOLFs position Still being against - they should be thrilled that their worries did not come to pass. I suppose it can be hard to accept you are wrong. I’d think they didn’t read the ruling except they have some good lawyers there so I doubt it.

Natasha Chart, Jennifer Chavez, and Kara Dansky of WoLF discuss the ruling here:

On p31 of the majority judgement they say "we do not prejudge" any cases about locker rooms, bathrooms etc and any such cases will be decided in future on their own merits and are not addressed by this week's judgement.

It's only fair to add, though, that on pp45-47 of the first of the two dissenting judgements (around p80-82 of the PDF) the dissenting judges worry about those possible future implications, as they see them.

The justices adopt a definition of "sex" as meaning biological sex ("we proceed on the assumption that 'sex' signified what the employers suggest, referring only to biological distinctions between male and female") and reach the conclusion that "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision."
So I think this is a good judgement.

@samyeagar -

"[SCOTUS] essentially merged sex and gender and made them interchangeable, when the original act used the word sex"

Because it uses the term "sex" to essentially cover sexual orientation and sexual identity."

You've just repeated the assertion, not explained why it is an accurate reading of the decision. Can you expand on this? No worries if not.

No doubt there will be challenging cases that will necessarily lead to further clarification, but the best remedy for this would have been for congress to amend Title VII to include the more precise language differentiating between sex, gender identity and sexual orientation.

But how does it merge sex and gender. I thought it specifically didn't do that? The opinion was the trans employee was discriminated against because he was not a woman and if he had been, what he wore was appropriate (and therefore he would not have been fired). That seems a really clear confirmation that a man wearing "women's" clothes cannot be discriminated against. It deliberately didn't make a comment on his status as a man or woman. That seems like a good thing for GC feminists surely? You can wear whatever you want, no such thing as clothes solely for one sex. Again. I am a bit lost where this gets sticky for natal women? Will take a read of the decision (although not used to reading US law - hence all the questions!)

The US Supreme court essentially merged sex and gender and made them interchangeable, when the original act used the word sex. While on the surface this is a very good thing for anti discrimination, I fear it will be used in unintended ways. I can already envision this impacting the cases in Connecticut.

The tragic irony is that without any clear, universal measurable definition of transition, the only thing stopping some men from abusing these provisions is the very shaming of being trans this is meant to curb.

That is a garbled mess. I hope my question is clear!

Can somebody walk me along the line from this ruling to women being displaced by trans women? I am a fully fledged GC feminist but I cannot see from this ruling where sex-based rights are under threat. So a sex based quota is set for boardrooms for example. How could this ruling make it easier for it to be filled by a trans woman? We have seen the re-defnition of "woman" in UK (in Scotland) for this purpose. But I can't see how this happened under this ruling in US? Whether it can still happen or not is one thing, but this ruling wedding anything for natal women feels like a stretch to me.

We are so frequently accused of trying to erode trans rights when all were doing is protecting women's rights. Arguing against this feels like a stand against the human rights of trans people to "present" as they want. And deliberately stayed out of the territory of "what is a woman"?

You are right that WoLF is militant.

I am glad that the SCOTUS finally declared their view that sexual orientation is protected based on sex under the Civil Rights Act.
Most states had laws to protect Gays and Lesbians but now there is recourse to the federal courts when discriminated against in every state.
It won't stop the discrimination,of course. Businesses will have to b more creative in their justifications for discrimination.