Supreme Court spreads a big rainbow flag over the word “sex”

“Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules” (NYT):

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.

Until Monday’s decision, it was legal in more than half the states to fire workers for being gay, bisexual or transgender. The vastly consequential decision extended workplace protections to millions of people across the nation, continuing a series of Supreme Court victories for gay rights even after President Trump transformed the court with two appointments.

Personally, I think that any law like this actually reduces employment opportunities for the category of people whom such a law purports to help. The law highlights to employers the inferior nature of workers in this category and that, if the employer is unwise enough to hire someone from this category, a lawsuit is an ever-present possibility. Absent a substantial discount, therefore, a rational employer, even one who is completely without prejudice, should thus do everything possible to avoid hiring someone who might fit into the protected category.

In our neighborhood… (“Love is Love” in a larger font than “Black Lives Matter”; significant?)

Gary Drescher, an MIT computer science PhD who is also interested in cognition and philosophy, posted this analysis on Facebook:

Today’s 6-3 Supreme Court ruling on sex-discrimination is encouraging, and not only because the outcome is good (and not only because Trump’s appointee Gorsuch wrote the opinion rebuking the Trump administration’s position). It’s encouraging because the legal reasoning is correct and straightforward: discrimination against someone for being gay or transgender is an instance of sex discrimination, even if Congress did not understand it as such when they banned sex discrimination in the Civil Rights Act of 1964. That is, it’s sex discrimination to fire someone for, say, wearing a dress or having a male spouse, if those same behaviors would not be penalized if the person’s own sex were different than it is.

By fanciful analogy, imagine if Congresspersons were all numerologists who in the 1960s passed a law saying that a person must pay an income-tax surcharge in any year for which the person’s taxable income was a prime number of dollars, due to some mystical property of primes. But imagine that at the time, 23,069 was widely believed to be a prime number, so Congress expected the surcharge to apply to that income. Nonetheless, upon discovery of the factorization of 23,069, a court today would have to hold that income exempt from the prime surcharge, even though the exemption contradicts Congress’s expectation when they passed the law. It’s not that Congress was using the term ‘prime’ differently back then–rather, they had a factually incorrect belief about a particular number’s primality. Even originalism regarding the meaning of a legal text does not necessarily bind us to false beliefs held by the text’s framers.

Gary has persuaded me! Readers: what about you? Is this the dawning of a great new era in American employment litigation?

(Separately, I wonder if the new interpretation of the law leads to a logical contradiction among some American religious beliefs. Transgenderism is as “real” as science, per the sign above. Belief 1: If Joe Linebacker decides to identify as a “woman” starting tomorrow, she immediately becomes a completely successful 6’3″ tall, 275 lb. woman, indistinguishable from a cisgender woman. Belief 2: Employers, being more interested in after-work sexual activities and gender IDs than in profit, will ferret out the transgendered and, as the NYT says, “fire workers for being gay, bisexual or transgender”. How can Beliefs 1 and 2 be consistent? According to Belief 1, absent a DNA kit, nobody can discern the difference between a transgender woman and a cisgender woman. If that is true, how does the prejudiced employer figure out whom to fire?)

Finally, what if the Equal Rights Amendment had been passed?

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

With this new interpretation of “sex”, what else would change had the ERA been ratified?

Finally, what is the practical effect of the righteous elites passing laws like these? Here’s a private text message from a small business owner, responding to the NYT article:

Except transgender is mental illness. Do you really think a company should be forced to hire a 6 foot tall man who thinks he is a woman?

From an immigrant physician, near the beginning of coronapanic:

We have a transgender psychiatrist health secretary. We r f**ked

(she is from a conservative culture)

Will these people (Deplorables?) be persuaded to abandon their prejudices via threat of litigation? Or will they just hide behind Silicon Valley-style “not a culture fit” (regarding an over-35 applicant) cover stories?

To sum up: I am persuaded by Gary and think the Supreme Court made the right legal decision, but I also think this decision will end making it harder for a transgender person to get a job in the U.S.

14 thoughts on “Supreme Court spreads a big rainbow flag over the word “sex”

  1. When white men are the only ones who can be fired, white men will be the only ones hired. Nice move ladies. With this, the refusal to grant cert to the 2A cases, ruling that state law over rules federal immigration law, and another capital case deemed ‘insufficient counsel’ the court is irrelevant to what America was. These rulings are just more paperwork created by a dead empire. But at least white guys will get hired now.

  2. So what happens when a middle-aged wearing a dress and drag-queen makeup wants to be a babysitter? Are parents going to hire him, or risk being sued?

  3. Sounds like Gary should be living in Geekikstan and working on his Spock I come in peace Kohen salute.

    • Thanks, but I mastered the Vulcan salute decades ago. So I’m fine with geekdom, but I’m a bit surprised if a fleeting reference to arithmetic is all it takes now to qualify.

  4. Have any of you actually read the court’s opinions? It’s simple, clear, and well written.

    To answer some of the hypotheticals above:
    * Fear of the resulting litigation is a poor excuse for allowing discrimination. Congress decided that it’s illegal to discriminate on the basis of race, religion, or sex. If people discriminate, they are going to end up getting sued. There’s a simple solution: don’t discriminate.
    * Failing to hire someone because of sex is discrimination too. Failing to hire gay people will not insulate you from the litigation. There’s a simple solution: don’t discriminate. This decision doesn’t change anything about the difficulty of defending yourself if you are falsely accused of discrimination. Congress made that tradeoff (to try to reduce discrimination at the potential cost of making life harder for people who appear to discriminate) and Congress can change the tradeoff if it wants to.
    * If the ERA had passed, then under Gorsuch’s reasoning, equality of rights under the law would not be denied or abridged due to being gay. That doesn’t sound like a surprising result.
    * Yes it is illegal to discriminate in hiring against a 6ft man who thinks he is a woman. Gorsuch’s test is simple: Would you fail to hire a 6ft woman who thinks she is a woman? If so, then it’s illegal to discriminate against a 6ft man who thinks he is a woman.
    * Any problem with the transgender health secretary wasn’t due to being transgender. Just because someone is conservative and has f*cked up ideas doesn’t give them any weight or merit.
    * If the only reason you don’t want to hire the middle-aged man wearing a dress and drag-queen makeup as a baby sitter is because he’s a man, you should consider hiring him.

    • Bradley: “If people discriminate, they are going to end up getting sued. There’s a simple solution: don’t discriminate.”

      I think you’re saying that everyone who is sued is guilty of discrimination (since the “simple solution” that will guarantee not being sued is to refrain from discrimination). Let’s assume that you are correct. Why have a trial and run up big legal bills on both sides, take up a lot of court time, etc.? If we already know that the defendant has violated the law, what is at issue? Only damages? Couldn’t we build a statutory formula for that? $1 million for each of the letters in LGBTQIA+ with which a plaintiff identifies?

      (Some of the European countries moved divorces out of the courts once they adopted no-fault or “unilateral” divorce, in which plaintiffs were guaranteed to win (i.e., be divorced from the defendant). It is now an administrative process handled in the same building as where marriage licenses are issued. See )

    • Didn’t we use to have that extremely important academic distinction of ‘sex’ and ‘gender’ once upon a time in a discarded racist era?

  5. For a while sin was fine with everyone as long as straight people had their table to partake in satan’s feast while the sodomites were confined to their own table in another room. God’s law cannot be defied in two places just for convenience – it will be defied equally and everywhere. Once a society has chosen the path of sin, it must necessarily perfuse to every corner.

    There is a way that seems right to a man,
    But its end is the way of death. – Proverbs 14:12

    Therefore, just as through one man sin entered into the world, and death through sin, and so death spread to all men, because all sinned— for until the Law sin was in the world, but sin is not imputed when there is no law. Nevertheless death reigned from Adam until Moses, even over those who had not sinned in the likeness of the offense of Adam, who is a type of Him who was to come. – Romans 5:12-14

    If you believe that, then this is a catastrophe. If not, then it will just be another big social experiment with lawsuits and bias training classes, reeducation campaigns, protests and marches. And of course your kids will be taught this in school. At camp. At work. And everywhere else. Wasn’t it inevitable?

    @Philg: As an undergraduate I wrote a long paper for a political science class at a good school discussing some of the likely consequences of passing the ERA, why it didn’t pass at the time, etc. One of my conclusions was that if the ERA was ever adopted it would necessarily have to apply to transgender people. At the time, the other 100 or so gender identities hadn’t been invented yet, so I didn’t consider them.

    • Oh, I got an A on the paper. The course was taught by a radical feminist, but at least it required me to read all of the Federalist Papers, Democracy in America by de Tocqueville, a lot of other source materials for class discussions, and of course the sourcebook on the ERA at the time: “Why We Lost the ERA” by Jane J. Mansbridge, which is still a useful guide how the movement to ratify the ERA fizzled out through a combination of internal and external forces.

      There are some surprising things in the book, I think everyone should read it:

      “During this moratorium, feminists will need to discuss what would be best for all women in the realms of combat, school athletics, prisons, and sex-blind legislation generally. Since about 1980, as more women have experienced the results of gender-neutral legislation like no-fault divorce and joint custody, some feminists have begun to articulate a critique of egalitarianism that looks much like Marx’s critique of bourgeois equality. They argue that in a society where one group holds most of the power, ‘neutral’ laws usually benefit the powerful group. From this perspective, a constitutional amendment that bars women from using their electoral majority and moral leverage to pass laws explicitly redressing the traditional balance of power may actually help maintain male supremacy. Although the ERA’s direct legal mandate for gender neutrality would probably have been balanced by its indirect political mandate for legislation and judicial interpretations that benefited women, its defeat still raises, in a different form, the questions that Florence Kelley raised in the 1920s. An open discussion of these issues among feminists would probably make some feminists more aware of the concerns that motivated mainstream legislators to vote against the ERA.” (197)”

    • By the way, Mansbridge is getting on in years but she still teaches at Harvard. Not right now, though, because Harvard is still closed.

      As my previous excerpt indicates, one the provocative lessons from her book was that gender neutrality as defined by the ERA alone was likely not enough to improve the plight of women in a male-dominated system. You hear echoes of that all throughout the BLM movement: merely being colorblind and asserting that you’re not a racist or “don’t have a racist bone in your body” is inadequate. The system is racist. The structure has to be torn down, it can’t be reformed without being destroyed first.

    • “some feminists have begun to articulate a critique of egalitarianism that looks much like Marx’s critique of bourgeois equality.”

      Little did these radicals know they would end up as bourgeois feminism.

  6. The law is such a no brainer, it doesn’t sound all as important as the media made it. What it might impact is entertainment, if male & female actors have to be hired for the same parts. Those of us impacted by the demise of & having to hire our own models for pleasure might be impacted.

  7. “With this new interpretation of ‘sex’, what else would change had the ERA been ratified?” It’s not a new interpretation of “sex.” In Gorsuch’s argument, “sex” means biological, chromosomal sex. What is new is a ruling based on the argument that an employment decision based on an individual’s being gay or trans is necessarily based, at least in part, on the person’s sex. (I am not yet positive that I agree with the argument, but it is quite cogent.)

    “Finally, what is the practical effect of the righteous elites passing laws like these?” Eh? Passing laws like the 1964 Civil Rights Act? Yesterday’s decision was an interpretation of the text of Title VII of that Act.

  8. If a dark-skinned person can say “I am black, therefore I deserve reparations” isn’t it racial discrimination to disallow a white-skinned person from saying “I am black, therefore I deserve reparations?”

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