The dissenters basically believe that “race, color, religion, sex, or national origin.” doesn't include "sexual orientation" or "gender identity" so legislation would need to be passed to change that.
The supporters (is that the right word) seem to agree. The issue isn't that the people were discriminated based on their sexual orientation or gender identity, but because of their sex. That is to say, if they were males presenting as females, then the discrimination is based on their sex of being male because had they been female presenting as female they would not have faced such discrimination.
It seems like a six of one half dozen of another distinction, but I think it may become a factor when you start considering other sexual orientations. Primarily asexual individuals, but there are a number of other characteristics of humans that are currently classified as sexual attractions and not orientations but which some scientists think should be reclassified based on the biological/neurological basis as we better understand the difference between a preference and an orientation.
No you're completely right, the argument they make is quite correct: the discrimination is based on preconceived notions of who a certain sex is allowed to present as or be attracted to.
The correct term would be the majority, or assenters maybe
> there are a number of other characteristics of humans that are currently classified as sexual attractions and not orientations but which some scientists think should be reclassified based on the biological/neurological basis as we better understand the difference between a preference and an orientation.
Could you give some further info please. You're talking distinctions that mean nothing to me. How could sexual attraction not be orientation or preference? It just doesn't make sense.
A blanket policy ban on hiring people attracted to women, or people attracted to both sexes, or attracted to neither sex. The court did not add "sexual orientation" to the list of protected classes, they just said that firing a man for being attracted to a man, but not firing a woman for being attracted to a man is discrimination based on the sex of the employee.
Wouldn't it be more effective for the law to say that any discrimination that doesn't affect a person's ability to perform the job is not allowed?
When you start itemizing specific traits it's a never-ending list. For example, the list quoted doesn't include eye color or hair color, or spoken language dialect, or ...
That's not the intention of these laws though. The basic presumption is "it's a free country, so people should be able to discriminate for whatever reason they want". However, when there's an overwhelming need for it, we will make carve-outs for specific situations. In particular things that people really can't change (race, nationality, sex) or that we deem as a society that they shouldn't have to change (religion).
For anything that doesn't fall under these categories, it's fair game to discriminate. You don't like vegetarians or people who play tennis? You can discriminate. You're might be a f* moron for doing so, but we don't have laws against that.
The problem with that is how easy it is to construct an argument that something like race is an impediment to work because of the biases of coworkers or customers.
Are blue eyed people being discriminated against? If the answer is no then your hypothetical is irrelevant and you are optimizing for the wrong case.
These are protected classes to correct a real failing of our social system.
I'm sure some albinos could claim discrimination in customer-facing jobs due to skin tone and eye color. It just might not be obvious (e.g. the employer simply never called them back after the interview, rather than hiring them and explicitly firing them later for "scaring our customers").
Playing Devil's advocate, let's imagine I pour my life savings into opening up a fruit stand, it does well I move to a fruit store that is popular and everyone loves, at this point everything has been bought with my personal funds, it is basically my property, I run it as a sole proprietorship instead of an LLC, I hire people, but ultimately everything is bought paid for and owned by me.
I also happen to hate people with purple hair and decide to ban them from my property and refuse to service to them. Now this is my store and property that I own, these are my goods that I sell. Why should the government be able to legally control what I choose to do with my property and my goods, if I want to pour them into a sewer, or set them on fire should I not be allowed to do that? So why should the government force me to sell them to people I do not want to?
So the reasoning behind carving out every specific protection revolves around the idea that there should be a good reason for the government to control what I do with my private property, as it extends to reducing my liberty to do with my property what I want, and now becomes a matter of balancing various parts of the implicit social contract.
Whether or not this is justified or which side is right is a different discussion but that is why each exception needs to be carved out as I understand it.
This is a bad example because discriminating against people with purple hair is absurd on its face, and doesn't lead people to question why that should be allowed.
Here are some better examples:
1. A big and tall clothing store that discriminates against smaller customers.
2. A cafe that discriminates against people who are assholes (to the staff).
3. A retailer that does lots of business on the weekends that discriminates against hiring people who can't work weekends for non-religious reasons (e.g. because they have a sports league they do on Sundays).
4. A restaurant that discriminates against people with vegan/carnivore/keto/raw food/etc. diets by not having acceptable meals they can eat.
5. An airline that discriminates against obese people by making them pay for as many seats as they are actually using.
A lot of "discrimination" is reasonable. Anti-purple-hair prejudice is not.
None of these are discrimination in the narrower sense that it's usually understood as.
1 and 4 don't actually ban those people, they simply don't provide any services that those groups of people would want.
3 is choosing not to hire people who don't actually fit the requirements of the job.
5 is paying for usage - obviously a reasonable concept, though specific policies may turn into discrimination.
2 is a reactive policy to something you have complete control over: your own behaviour. They don't care about any characteristic of you, except that you follow the rule of being polite to their staff. If the rule to follow becomes discriminatory then you'd have an argument - but that's not the example you brought up.
Yes, these are all arguments you might be able to use to varying degrees of success to defend yourself against a discrimination lawsuit, but that's a lot more hassle to deal with than if said lawsuits are already just invalid on their face because discrimination is legal generally except for a few specific kinds.
Also I'm not as optimistic as you are that some of these defenses would work.
Because you live in a society that mostly functions because people mostly don't discriminate against each other, and the conditions which result in you being able to open a fruit stand for personal profit would be basically impossible without that.
Luckily, this is mostly the case today, and for the cases where it's not eventually a law gets passed, so there's theoretically no reason for a broader law assuming that we don't... assuming that the goal is eventual consistency, so to speak.
> "You're absolutely allowed to discriminate based on hair color because it's not a protected class."
The "not a protected class" counterargument is self-defeating because it suggests that discrimination was A-OK before that protected class was created by law. If illegality does not imply immorality, as is often said on HN, then conversely legality does not imply morality.
I don't think you're saying anything different than the comment you're replying to. They are themselves replying to the question "well, why not just forbid discrimination on anything except the ability to perform the job", and their answer is the same as your second paragraph.
>Why should the government be able to legally control what I choose to do with my property and my goods. ... So why should the government force me to sell them to people I do not want to?
Because your property and your ability to sell goods is directly supported by the people you discriminate against.
How do people, customers and employees alike, get to your property? Roads? Helicopter overseen by the FAA? How do packages get delivered over the roads, semi, USPS, UPS/fedex. Who pays to protect your building from crime and fire, who pays for the energy infrastructure, who pays for the teachers teaching your workforce?
Your store isnt an isolated self sufficient entity, its part of a web of interconnected forces mutually benefiting each other. There is a social contract, that if you want to profit off the infrastructure of the United States, you wont discriminate.
The entire premise of government is that you give up some of your personal freedoms in return for rules in a society. What you're saying makes sense in an anarchist regime, but that's not what we have today.
Also, your right to private property is, itself, protected by the government. Without that protection, I could steal from your fruit stand with impunity (as long as I have the bigger gun).
Could you may be think about how you were able to do the said fruit stand business in peace, take a currency as a payment and not worry about bartering, not worry about your business being stolen outright my guy with biggest muscles or how people are able to come to your fruit stand in the first place etc? Unless you are thinking of your business in a vacuum, then go ahead and fantasize.
If every business in town discriminates against purple-haired people, for example, the owners of the one business to break ranks leave themselves open to harassment up to and including being murdered. Even if no business wants to discriminate, being the first to make the move sets you apart, and open to retaliation from the consumer base. The government mandating hair-color-equality dissolves the problem very neatly.
> Why should the government be able to legally control what I choose to do with my property and my goods...
When you run a store on your private property, you are inviting the general public onto your private property and it ceases to be as private as it was.
You can be indignant as you wish, make all the arguments that you wish, but this is how it has been for hundreds of years.
That is not true. It remains private property, even though some public regulations apply.
If opening a store to the public made it not private property, then well meaning rules like “no shirt, no shoes, no service” would have to be handled by local ordinance, which would be overly cumbersome.
Yes, but the case presented focused solely on the definition of "sex" in title VII so that's what the court ruled on. As programmers its easy for us to take it up to a more abstract level, but in the legal world I guess that's difficult to do.
It's not that it's more difficult to do, it's that you generally don't do it. SCOTUS in particular will not respond to, mention, or address anything even approaching a hypothetical scenario, which is sometimes frustrating when the specifics of a case aren't just ride for larger sweeping changes that society may want. You'll often hear of proponents of one reform or another saying that a given case is perfect for SCOTUS because it lines up very closely with their policy objectives.
I don't have an example off the top of my head, but I'm pretty sure I've seen arguments presented to the SCOTUS that are absolutely based on hypotheticals, including hypotheticals introduced by the justices themselves.
Yes the justices ask questions around hypotheticals and can ask the attorneys to make arguments based on hypothetical situations the justices present, but they hear only specific cases, not hypothetical ones, and the decisions refer to the specifics of the attorneys' arguments and the case law only.
Of course. There's no court case that is based entirely on a hypothetical. But it seems exceedingly common - especially on the scale of SCOTUS - to abstract a specific event or argument to the more general one.
Take constitutional challenge to Obamacare for example. I assume they had to point to someone specific and say "this law violates that person's rights", but they absolutely "considered" and "responded to" the hypothetical in that case.
Only if you believe discrimination laws are cost free. On the other hand, if you believe that such laws have cost at scale - frivolous lawsuits from fired employees erroneously claiming protection, and more constrained hiring and firing to avoid such lawsuits - then you'd only want anti-discrimination laws for the cases where discrimination has existed historically.
Yes, kinda. It's called "bona fide occupational qualification". The law states that you may discriminate so long as (race, sex, national origin, etc...) "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise"
Seems like we could refactor the law to just state this: You can only discriminate on bona fide qualifications.
Protected characteristics are not an never-ending list, and that's the only thing you cannot discriminate based on.
You are 100% free to post a job add saying that those with green eyes need not apply. You'll likely still be sued, and you might even lose, but it won't be due to Title VII.
That's not really a justiciable standard. If I say only aggressive, pushy people can effectively sell cars at my dealership, and a timid person thinks I'm full of it, how's a court supposed to resolve that dispute?
The dissenters said that the 1964 Civil Rights Act did not intend to cover sexual orientation or gender identity and that the proper remedy is for Congress to change the law and not for the courts to, in effect, become legislators.
I could honestly see it both ways, but this argument seems relatively weak to me. The court here isn’t necessarily creating legislation but rather are making the judgment/interpretation that “sex” does include sexual orientation. From what I can tell making those kind of interpretations are at the core of the Court’s purpose.
That is exactly what the majority opinion stated in response to the historical meaning argument. It is not reasonable to expect every time a court finds a law should be applied in a way its never been applied before to then throw up their metaphorical hands and say "welp. Guess we have to let the legislative branch do something, our work here is done."
Re-interpreting existing law is a HUGE component of our legal process. This goes all the way back to common law roots -- the court does not PREscribe law from above arbitrarily, rather it DEscribes the existing societal contract.
> Re-interpreting existing law is a HUGE component of our legal process.
It is, but that doesn't necessarily mean it should be.
Decisions like this are ultimately political. The Court has basically decided that discrimination based on sexual orientation or transgender now counts as discrimination based on sex and hence is prohibited by law. But decisions about what real-world actions count as what legally recognized actions are political decisions, and political decisions in a democracy are supposed to be made through the democratic process, i.e., by the people or their elected representatives.
> This goes all the way back to common law roots
Yes, but those common law roots are not based on democratic norms; they come from societies that were not democracies but monarchies. A case could be made that our concept of "common law" has not kept up with the evolution of our society from monarchy to representative democracy.
Of course, an opposing case could also be made that even though our society is nominally a democracy, that doesn't necessarily mean that everything in the law should be democratically decided. Our law does recognize fundamental rights that cannot be changed or removed by the democratic process, and at least part of the process of common law is supposed to be to provide a way for people to have those rights recognized and respected even if there is no explicit statute that does so. Then the question would be whether there is such a right not to be discriminated against based on sexual orientation or transgender.
It's the same BS that got us out of control qualified immunity, just because a court hadn't already found that the precise way a cop/government official violated your rights was a violation of your rights they couldn't be charged for it. [0] More conservative justices love originalism because it lets them just throw back to the decisions of a more backwards time and say, 'well we have to respect their direct explicit intent' [1] it's a convenient way to not move forward.
[0] Never mind that it also expects the existing case to be /exactly/ the same situation.
[1] Often just what anyone appealing to originalism wants them to have intended.
> The court here isn’t necessarily creating legislation but rather are making the judgment/interpretation that “sex” does include sexual orientation.
No, the majority opinion is not doing that. It is not arguing that "sex" includes "sexual orientation". It is arguing that, in order to discriminate based on sexual orientation (or transgender), you have to also discriminate based on sex.
The dissents disagree with that argument. But both sides agree that "sex" does not include "sexual orientation"; they are distinct concepts.
Thanks for the clarification. I read Kavanaugh’s dissent instead of the Court’s opinion, so I made a wrong assumption. You are correct, they aren’t making the argument I was thinking they were.
With that said, I still think that this is far from the Judiciary system amending legislation.
On the other hand, the entire idea of transgenderism is based on sex. Without sex, transgenderism doesn't exist. So by discriminating on the basis of if a person is transgender, you are by extension discriminating based on their sex.
The counter to this would be that these bans aren't discriminatory on the basis of sex because the same rule applies to both sexes. It all depends on how you want to look at it. It can either be:
(1) People can't have same sex relations
(2) Women can have relations with men but men can't have relations with men.
Practically they are the same, but (2) discriminates on the basis of sex while (1) does not.
If they are the same then how can one way of stating it be discriminatory and the other not discriminatory? It's just word games. If the effect is discriminatory why does it matter how you wrote the law?
It's perhaps in 1964 many of those voting would not have thought of transgender folks... on the other hand we also expect these laws to be applied fairly. A random house member might have some constituency in mind, and not everyone else, but is that the basis for not protecting someone under the law?
I worry that going too close to the line of "what would a house member from rando time period want" becomes a strange place of conjecture.... and frankly relies heavily on a sort of mind reading / our own biases of the past... and legislators who are not bound by reason, existing laws, or any sort of absurd contradictions.
But perhaps that's always the judicial quandary. How closely to follow the letter of the law passed when it may not pass a constitutional test, or even just logic test.
Unimaginable? Why? The Stonewall riot happened in 1969 and it wasn't the first action by and in support of transgender people in the US. In what year would it have been imaginable, for you?
> "The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574.
> "While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message.
> "Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn." (emphasis added)
---
From my understanding, the court is looking at this law as it is interpreted in "plain terms", which is from the point of view of "how would an average Joe or Jill on the street understand x?", in this instance, x being title VII's concept of "discrimination based on SEX".
The way the court sees it, if you fire a GUY for liking GUYS, but don't also fire a GIRL for liking GUYS, that is different treatment based on sex.
They then state that if you respond, "Woah, that may be a valid interpretation of the words, but its never been APPLIED like that before", tough luck. Its the court's job to re-interpret and clarify rules and fully within their ability to do so.
(Edit: I re-read the opinion and found a different summary more appropriate.)
Gorsuch, in the majority, asserts that textually, the words written would and do indeed cover discrimination of gender identity and sexual orientation by extension of sex. Textually meaning regardless of whatever the original intent was, ie it doesn't really matter if they were considering transgender people in that list
Rotary cannons were not invented until the mid 19th century, so long after the American Founding Fathers and the drafting of the first amendments to the Constitution.
You can own a mortar tube in the US. It's classified as a "destructive device" so you might have to fill out some extra forms, and it's probably hard to find someone who will sell it to you.
Not that I'm aware, but they did have privately owned cannons firing grapeshot; veritable WMDs. Grenades were also a well established concept back then, though I don't know what the history of private grenade ownership in America is.
"What the writers had in mind" is one way of interpreting laws in the present day, but by no means the only way. You will probably find a ton of laws in effect today that are applied to things, or interpreted in ways, that no one could have anticipated when they were written.
The thing is that the concept of transgender and homosexuality both existed and were recognized at the time. This isn't extending law based on telegraphs to computers; this is extending law based on telegraphs to horse-based mail delivery.
That said, clearly these classes should be afforded the same protections; I'm just more comfortable with our legislators making that explicit in the law rather than courts arbitrarily expanding the scope of the law. There is at least one attempt, [1], that is still in progress; hopefully now that the courts have made it moot it will be easier to pass this to codify the result.
Why bother writing laws if the mindset of legislators is all the matters? Members of Congress could submit daily diaries for the record, and then the Supreme Court could try to imagine what they might have been thinking 60 years ago whenever an issue comes up.
Please read the decision, it's a very straightforward reading of the law. Transgender discrimination is sex discrimination by definition.
I’m not sure why this thread is giving so little focus to the logic of the justices who voted in favor. Their argument makes sense too.
The claim is that you can’t discriminate against LGBT employees without discriminating based on sex. If I tell my boss that, as a man, I have a husband and he fires me over it, he’s firing me because he thinks a man should not be in a relationship another man. He would not fire a woman for doing it, only a man.
The court is saying that that is discrimination based on sex, which is covered by the language of the existing law. To me, that makes sense too. It’s not like the justices are making up reasons for one side or the other. Both sides had a point. That’s why it made it to the Supreme Court. And six justices interpreted it one way, and three the other and now we have the court’s decision.
But isn't it literally the Supreme Court's job to interpret competing possibilities of extant laws? This seems like the weakest argument you could think of.
SCOTUS does not consider or rule on hypotheticals, only the specifics of a given case. And generally, judges will rule only based on the individual attorneys' arguments, not other arguments they can think of but the attorneys did not make.
I don't see what that has to do with anything. Saying that "congress should change the law because the law is vague" isn't a ruling. The Supreme Court has weighed in on far more vague and unclear laws before. It's basically just saying that they don't want to touch the issue.
That's not the argument the dissenters are making. They're saying that the fact Congress has tried several times and failed to add specific orientation and transgender provisions is evidence they shouldn't be included in "sex" (otherwise Congress would see no reason to add those specific provisions). Just because we happen to disagree with the argument doesn't necessarily make it a bad legal argument.
The dissenters basically believe that “race, color, religion, sex, or national origin.” doesn't include "sexual orientation" or "gender identity" so legislation would need to be passed to change that.