SCOTUS ruling on LBGT rights

[ProfessorSlocombe]

www.nytimes.com/2020/06/15/us/gay-transgender-workers-supreme-court.html

The Supreme Court ruled Monday that a landmark civil rights law protects gay and transgender workers from workplace discrimination, handing the movement for L.G.B.T. equality a stunning victory.

“An employer who fires an individual merely for being gay or transgender defies the law,” Justice Neil M. Gorsuch wrote for the majority in the 6-to-3 ruling.

WoLF seem to have got this wrong: www.facebook.com/womensliberationfront/posts/3072538632840641?hc_location=ufi

Are they the group that protested outside the Court last year when the case was being heard?

Yes, they are. They have filed an amicus brief in the case of the funeral home and the (now dead) trans employee who they fired. But I think that case was filed under Title XIX. Not sure as not American

Title VII is the statute covering employment.

Someone sensible has to read the actual blinking judgement. C Clymer has been tweeting to make sure people realise it is a victory for gender identity as well as sexuality. But it depends if gender identity was actually a reason for the decision. The press is all about “if it was Ok for a female it should be ok for a male” so different dress codes can’t be enforced at threat of dismissal.

Lawyer W. Burlette Carter, who has been following this case closely and filed two amicus briefs on it, has an excellent thread on the ruling here:

twitter.com/wddaughter/status/1272553010917507075

She thinks it is a good outcome that protects the employment rights of gay and trans-identified people without redefining sex. She mentions that in one of her briefs:

I asked the court to rely upon a decision, the Oncale case, to find that discrimination based on the presentation of Gender is banned under Title VII without overturning distinctions between biological sex and gender identity.

And on a straightforward reading of the majority opinion (by Justice Gorsuch), the court seems to have ruled along those lines in the case of Stephens, i.e., that Stephens was fired for presenting in a feminine manner, when a female employee wouldn't have been, hence, discrimination on the basis of sex.

The worry, for me, is the slippery nature of the concept of 'gender identity'; most crucially, the way it colonises the language of sex and thus transforms it. Since 'gender identity' uses the language of sex to conceptualise itself, merely referring to it is enough to subtly shift the meaning of sex from a physical locus to a psychological state.

We can see this in the way the Gorsuch refers to Stephens' 'sex identified at birth' - the last three, unnecessary words are almost certainly entirely new language for the court (I bet every other case involving sex discrimination simply referred to 'sex'), and they destabilise the truth of sex as something bodily and immutable.

By using this language (probably entirely unconsciously) the court has incorporated the precepts of gender identity theory into its ruling, even though it is careful to clarify that sex (at least in respect to title VII) refers to 'the biological distinctions between male and female'.

In her thread, Carter also discusses whether the court's reasoning in this case, if extended beyond employment, could be used to outlaw single-sex provision in other areas like homeless shelters and sports:

No doubt, some judges will decide the case means they can dismiss biology even though the M said it is not doing that. But my guess is that the court is headed toward narrowing the biology exception--but keeping it.

I'm not quite sure what she means by 'narrowing the biology exception - but keeping it'. But given that the overwhelming trend in the courts, the law and society has been to legally erase the significance of the sexed body altogether, I am fearful. And indeed Justice Alito, in his dissenting opinion, says the reasoning in this case could be used to effectively overturn Title IX and outlaw all single-sex provision:

The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.

Notice again how Alito incorporates the falsehoods of gender identity theory into his language even as he apparently rejects its logic: he refers to people who 'identify as female' or who 'transition from female to male'.

It's really incredible the way the language of 'gender identity' manages to scramble people's minds, rendering clear thinking on this subject impossible. Even Supreme Court justices - people whose professional lives have been dedicated to scrutinising arguments for logic, via the careful parsing of language - end up saying outright absurd things like 'transition from male to female', in direct contradiction to their own definition of those terms, without even realising what they are doing.

Full ruling with dissenting opinions here:

www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

@Donkeyskin - I'm not sure I agree that the words "sex as identified at birth" is as slippery or unconscious wording as you set out here. I can imagine it is very well chosen. They are not unawa of the weight of every word of the ruling for current observers and for the rest of time. And to me confirms the biological basis of sex. The sex was not just assigned. It was identified.

Is there a reason why it seems more vague to you? Perhaps precedent where that language has been used to conflate gender and sex? I'm aware of "assigned at birth" being contentious (and I can see why). But identified at birth seems to strengthen rather than weaken the point to me.

'Sex identified at birth' is better than 'sex assigned at birth', for sure.

It is a relief that the opinion does not use the 'assigned' terminology once - especially since the ACLU lawyers used it constantly in their arguments. That the court has declined to echo this language is significant.

I still think 'sex identified at birth' is dangerous, because the implication, even if unintended, is that the person's sex might be different now (and again, if the intent is to underscore that sex is biological and immutable, why not just use 'sex'?) . The way this concept slippage works is made clear in context, for instance, p. 19 of the majority opinion:

By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.

See how the adoption of gender identity terminology causes incoherent thinking, and thus, the ruling ends up reifying the notion of 'sex change', even though this is probably not the justices' intention, given that they explicitly define sex as relating to male and female biology?

This seems like a good ruling and one that somewhat resembles provisions in our own Equality Act.

I'm still confused about why WoLF thinks this is a bad judgement and why they supported the funeral home.

I had a look and found their post about the protest from last year. It also doubles up as a barbed attack on Ruth Serwotka at WPUK.

Is WoLF supposed to be a feminist outfit? This feels like a judgement feminists should be pleased about.

Maybe I'm missing something...

@howonearthdidwegethere

I'm still confused about why WoLF thinks this is a bad judgement and why they supported the funeral home.

I had a look and found their post about the protest from last year. It also doubles up as a barbed attack on Ruth Serwotka at WPUK.

Is WoLF supposed to be a feminist outfit? This feels like a judgement feminists should be pleased about.

Maybe I'm missing something...

They know it will be used to displace women in the workforce with men who identify as women, in the name of equality. That is what the Labour Party and others did when they selected transwomen as their women's officers.

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.

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"?

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

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.

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!)

@Griefmonster

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!)

This was my take on it but like you I don't find US law easy to follow.

@Griefmonster

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!)

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

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.

@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.

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.

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.

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

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.

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.

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.