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.

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?

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

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.

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.

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.

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.

I wondered about that too Longines.

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)?

If I'm getting this right WoLF's concern is not with what the decision itself has said but what it hasn't said and how others might interpret what is there and what don't there.

So there's a job to do in dissemination of clear info on what the decision does and does not say. It really feels like they are muddying waters right now and handing a bunch of avenues to willfully misinterpret the decision on a plate.

@Griefmonster

If I'm getting this right WoLF's concern is not with what the decision itself has said but what it hasn't said and how others might interpret what is there and what don't there.

So there's a job to do in dissemination of clear info on what the decision does and does not say. It really feels like they are muddying waters right now and handing a bunch of avenues to willfully misinterpret the decision on a plate.

Exactly. The Court had an opportunity to make things clear but instead chose to make things confusing, starting with taking this case rather than Boyertown. The fact that the decision is confusing is evident in the variety of takes we're getting already!

In the current atmosphere, I doubt very much that companies and organizations will default to protecting women and girls amidst the confusion.

Yes, unintended consequences.

I just cannot see given the plain language in the ruling That dress codes being enforced sex specifically could be legal.

The simple language ruling emphasizes that these cases are a simple inprepretarion of the law. The criteria are only that ther person would not have been fired but for, in part, their sex.

Imagine the woman (No gender ID) who refuses to follow the female dress code but instead follows the male dress code and is fired. But for being female she Would not have been fired.

The ruling also goes into the fact that none of this actually has to do with gender id of the person but rather only with the employers choice to discriminate, in part, based on sex.

Even if it’s not been tested this is a MAJOR precedent against sex specific dress codes and wolf should push the law further in that direction by supporting any such law suit.

@Griefmonster

If I'm getting this right WoLF's concern is not with what the decision itself has said but what it hasn't said and how others might interpret what is there and what don't there.

So there's a job to do in dissemination of clear info on what the decision does and does not say. It really feels like they are muddying waters right now and handing a bunch of avenues to willfully misinterpret the decision on a plate.

This is exactly my concern with this ruling, and why I suggested earlier that a better remedy would have been for Congress to amend Title VII to include explicit language of sexual orientation and gender identity. There is still more than enough wiggle room in the ruling to allow for further testing of sex/gender clarification, and given the current political and social climate, I fear that gender will trump sex.

An example of my concern as it happens with US law, and not directly related, but a good example of unintended consequences and uses...

The Affordable Care Act, ObamaCare if you will, has a provision allowing parents to keep their kids on their insurance policies up until age 26 if they so choose, and the insurance company must comply. My state interpreted that within Family courts to mean that divorced parents could be ordered to keep their children on their policy until age 26, and not only could they be so ordered, that is now the courts default position.

Where you see plain language I see countless ways of interpreting the language of the judgement to argue "the law now says that sex includes gender identity".

I read it as an exercise in muddled reasoning. In search of a just result sure, but that doesn't make it plain.

The test is how much trans activists and human rights organisations will use the judgement to force women's single sex spaces to open up to transwomen.

Also the fact that there has been no clarification or definition of transition. Unlike biological sex where there is an objective measure and definition...XX, XY, with gender identity, there is none. While that defined line may not be material in many situations, it becomes crucial in others such as healthcare, prisons, sports. Different jurisdictions are left to defining it how they wish, which again, in most cases is a non issue, but in others, is very important, especially as it applies to High School sports where most participants are below the age where doctors will perform any parts of transition.

As has been seen in the most recent challenges to abortion law in the US, never underestimate the creativity and lengths some groups will go to to circumvent the intent of a law or ruling.

My interest in the ruling came from the fact that it was an unexpected turn of events from a SCOTUS that had been viewed as becoming more illiberal.

SCOTUS can only interpret existing laws through the prism of the constitution. That is their only remit. The underlying case being that if legislators don't like it, they are more than free to draft new laws - as long as they too are constitutionally valid.

My friend that flagged this up to me in the US noted that underneath the specifics of this case, is an attempt to whip up a sentiment in the US to parallel the current "we don't need judges" movement in the UK, and indeed that's my particular interest in this. Because taken to the logical (if that word applies) extreme, the day might come when POTUS and his little minions refuse to comply with a SCOTUS ruling and stick their little tums out to say "make me". And that would be an interesting day.

Just to clarify. I think that the dress codes question can quite plainly use the language in this ruling as precedent. The reason is because The argument in favor of Aimee being discriminated due, in part, to sex is based on Aimee being MALE, and that if Aimee had been female, dressing in women’s attire would not have been an issue.

The ruling explicitly did NOT use the Twisted reasoning put forth By Aimee Stevenson’s lawyers which claimed Aimee is now female and was “assigned male at birth”. Instead the ruling confirms that Aimee is male. Transwomen are according to this ruling, Natal Males, which is also the plain definition of sex put forth by SCOTUS here.

This also helps support (Not harm) the idea that transwomen could be rightly excluded from “bona fide” sex segregated employment, given it establishes that trans women are male according to the Title VII.

All that to say This level of detail And analysis of the extremely reasonable middle ground SCOTUS poses here is being actuvely ignored by both the right and the left on this issue. The left is saying “Gender ID is protected by title VII, hurray!!” And the right is saying “they’re coming for sports and bathrooms next!!” When neither of those things are accurate readings of the ruling IMO.

Activist and lawyers will of course Use the Parts of the language that Best helps their argument. That’s how this works. I’m going to continue to be Extremely relieved by this very careful and conservative ruling which Re establishes, That sex exists, from birth as either male or female, and that a persons sex should not be the basis of employment discrimination.

That was an informative clarification FWRLurker .

The WOLF video Grinitch linked to is worth watching.

Their main concern is that this ruling reifies 'transgender status' as a protected category under sex discrimination law, without defining 'transgender status'. Essentially the court has decided to create a new protected category that is based on someone's claim to be a sex that they aren't. It's not about dress codes, which are barely mentioned in the ruling.

They've introduced this idea that you can 'identify as' something that they acknowledge that you are not, which is just strange... Aimee Stephens just sent his employer a letter, and I guess this is sufficient to make the entire US government, every employer, every client, every business agree that someone is a sex, that everyone knows that they aren't. (25.20).*

Although the ruling specifies that this only applies to employment law, lower courts could decide that the reasoning is broadly applicable to other statutes. (Also, as Grinitch pointed out, employment law covers some instances where sex is relevant, e.g. rape crisis counsellor, prison guard, beauty therapist, professional athlete, where sex distinctions may now be illegal.)

This leaves the door open for lower courts to decide that, for instance, a male athlete who wants to compete against females has the right to do so if he claims 'transgender status'. To refuse him entry into the female category would be a form of sex discrimination against him. And so on for all areas of single-sex provision.

You can bet the ACLU will take this and run with it.

In the video, one of the WOLF lawyers also points out that even if SCOTUS eventually clarifies that single-sex provision is lawful under Title IX (and there's no guarantee they will), it often takes years, even a decade or longer, for a test case to reach the Supreme Court. In the meanwhile the lower courts are free to wreak havoc on single-sex provision, by interpreting it as a form of sex discrimination against persons who claim transgender status.

*Interestingly, I saw a conservative legal commentator chide the ADF (the group representing the employers in the Stephens case) for failing to challenge the ACLU's lawyers to define 'gender identity' during the arguments. He said in the future lawyers need to zero in on this point, because everything hinges on the fact that 'gender identity' has no objective definition.

Worth noting in this context that in 2007 Congress was on the cusp of passing LGB employment rights in the form of the Employment Non-Discrimination Act but the effort failed because of activists' insistence on adding gender identity to the legislation:

ENDA was first introduced 30 years ago. In all that time, it only protected sexual orientation and never included gender identity. This year, that changed, and gender identity was added to the bill. Coincidentally, this year is also the first time that ENDA actually has a real chance of passing both the House and Senate -- but only if gender identity isn't in the bill. So the bill's author, openly gay Rep. Barney Frank, D-Mass., dropped the transgendered from the bill, and all hell broke loose. Gay activists and 220 national and local gay rights groups angrily demanded that gender identity be put back in the bill, guaranteeing its defeat for years to come. Many of them, suddenly and conveniently, found all sorts of "flaws" with legislation that they had embraced the previous 29 years. They convinced House Democratic leaders to delay action on ENDA till later in October. They'd rather have no bill at all than pass one that didn't include the transgendered.

www.salon.com/2007/10/08/lgbt/

The whole piece is really, really worth a read.

The bill passed the House but didn't get out of the Senate.

'gender identity' has no objective definition.

This right here, especially at it pertains to situations involving younger persons who are not at an age where doctors will significantly begin transition.

Which kind of gets back to what I said earlier that the twisted irony here is that one of the main checks and controls on this being pushed, especially if there is financial incentive such as scholarships, grants, job opportunities, is the same trans shaming this type of ruling is meant to allay.