April 22, 2019

"The Supreme Court on Monday added what could be landmark issues... whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity."

Robert Barnes reports at WaPo:
The court accepted three cases for the term that begins October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unsuccessful in convincing a court that he was unlawfully terminated because of his sexual orientation.

The cases shared a common theme: Whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation....

Few would venture that Congress had transgender and gay Americans in mind decades ago when prohibiting discrimination on the basis of sex....
Sex is different from gender — yes or no? I don't think the rights advocates have to say sex equals gender to win, and sex discrimination in the employment context rarely has to do with the genitalia. It's about how the employee looks and acts and speaks and the various assumptions and reactions that happen in the mind of others.

It will be interesting to have these issues so active in the public discourse as we go through the 2020 elections. Conservatives dominate the Supreme Court, and that may mean that the rights advocates lose all these cases, just as America is deciding who we want to appoint the next Justice or two or three. A lot of us may think it's time to bolster the liberal side of the Court. We will get a great chance to think about whether the liberals or the conservatives seem properly judicial and better in touch with what we imagine the law really means.

105 comments:

Vance said...

Really simple issue: Do you want a guy to be in your daughter's shower at school? yes to no? If you don't, then don't vote leftist. That's easy to understand.

Of course, if you don't mind your daughter's being sexually abused, then go ahead and vote for the leftists. That's what the transgender movement is pushing, fast and furious.

BarrySanders20 said...

All I want is a justice who is in touch with what I imagine the law really means.

My imagination wanders sometimes, and is not consistent, but as long as my dream justice keeps pace, we're good.

gahrie said...

We will get a great chance to think about whether the liberals or the conservatives seem properly judicial and better in touch with what we imagine the law really means.

The keyword being "imagine" rather than "understand".

Birkel said...

I can only hope that RBG does the right thing before those cases are heard.

Amadeus 48 said...

So, what do we make of the research that shows that male to female transgender people still have an eye for the ladies? Do they feel like lesbians in their female personae? How aggressive are they?

Oh, the confusement!

gahrie said...

Protecting the "right" to kill your unborn child has taken precedence over fundamental liberal values, and the shallowness of the belief in those values is revealed in the way people don't even notice what they are subordinating to their... singular obsession

FTFY

Milo Minderbinder said...

Wouldn't the straight-up (pun not intended) way to address these social issues be, first, for Congress to amend Title VII, and second, for the very blue states' legislatures to amend their laws to provide whatever protection they deem appropriate to these classes (as several states have done since Kavanaugh respecting abortion)?

Ingachuck'stoothlessARM said...

is it "rights advocates", in quotes, as a sloppy term to identify,
or are they truly advocates for what is truly right?

Nonapod said...

Sex is different from gender — yes or no?

Who knows? Society is constantly trying to redefine and deconstruct words and terms. But if you deconstruct things too much you end up with meaninglessness. In this situation, there's a very loud minority who is attempting to say that all aspects of human identity are unfixed and can only be defined by the individual. It's not just sex and/or gender, it's also race, even species. It's no longer argumentum ad absurdum to say that this small minority is attempting to redefine what a human being even is.

Why? Power over others is intoxicating.

Birkel said...

It's funny that "rights advocates" want so very much the power to tell other people how they must behave.

Althouse is abusing the English language.

PJ said...

“. . . what we imagine the law really means” turns out to be so much more important than “what the law really says” and “what the law was really menat to accomplish when duly enacted through democratic processes.” A Living Constitution is not enough — we must have Living Statutes as well!

Bay Area Guy said...

The Question: "whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity."

The Answer: Hell, no.

Whether the Federal anti-discrimination OUGHT TO protect on the basis of sexual orientation and gender identity is a fair political question that should be debated and voted on by our representatives.

The Left doesn't view it that way. If they can sue their way to preferred policies, they do it, if they can legislate their ways to preferred policies they do it. The goal is to get the policy enacted by court or congress or executive order if possible.

Amadeus 48 said...

We don't need the Supreme Court violating the plain intent of the legislature and the president when the 1964 Act was adopted. We know that the Congress and the president can fix any shortcomings in Title VII. All they have to do is build a political consensus. That's how the 1964 Act was adopted in the first place.

Right, Althouse?

mockturtle said...

A bridge too far.

Dust Bunny Queen said...

In terms of hiring people to do work for you.....

As long as their actual sex (DNA), or chosen gender (deciding to pretend) or sexual orientation (homosexual or heterosexual) isn't a conflict with the job you are hired to to or won't interfere with your ability to do the job.....then there should be no discrimination.

HOWEVER your prospective employer has a right to not hire you for all sorts of reasons including I don't like you because you are a rude asshole or too stupid to do the job. (I have not hired people for those very reasons)

If you are not able to function in that job because of many factors like the above but also including: Physical handicaps, too many tattoos, drug usage, inability speak or communicate in the language needed and all sorts of other reasons.

traditionalguy said...

These are not about equal anything. It is about legalizing the Sex Change industry which has become a mass medical child abuse racquet, and the mentally ill adults who want approval for their loving to have sex with children " orientation".

Dust Bunny Queen said...

I have the right to not hire you if your very presence is going to alienate my customers and cause me to lose business.

I am not required to set myself on fire to appease your pecadillos and foibles.

Birkel said...

DBQ,
You are wrong.
Sorry.
But your customers' racism is not a reason to discriminate against people based on race.

The question is whether the law will cover this thing too.

Birches said...

I'm hoping the right answer is instructing the Federal bench and state and federal lawmakers that there is no new secret provision for transgender and gay workers. There must be a legislative solution before there's a judicial review.

Anonymous said...

AA: why is it time to “bolster the liberal side of the Court” — this is not an obvious position to defend.

Michael K said...

A lot of us may think it's time to bolster the liberal side of the Court. <

Yeah. Infanticide is such a good election issue to run on.

hombre said...

“...and sex discrimination in the employment context rarely has to do with the genitalia. It's about how the employee looks and acts and speaks and the various assumptions and reactions that happen in the mind of others....” Holy moley, Professor! You can’t be serious.

“A lot of us may.think it's time to bolster the liberal side of the Court. We will get a great chance to think about whether the liberals or the conservatives seem properly judicial and better in touch with what we imagine the law really means.”

Yes. Given the recent performance of judicial liberals from top to bottom, particularly in interpreting executive orders, it is clear that they are, most assuredly, “properly judicial.” And, of course, only a finding that Congress intended “sex”, as in “sex discrimination” to include homosexuals and transgenders will provide US with the assurance that judges are “in touch with what WE IMAGINE the law really means.” /Sarc.

Translation: “We imagine” = “We wishfully think.” Let’s hope this is just an Althouse prod and she really has progressed beyond this sort of absurd thinking.

eric said...

We need to lose this next election so the liberals can get more liberals on the supreme Court.

Otherwise, if we win, then we will lose future elections because the liberals will be so angry over the supreme Court that they will vote harder to get their SCOTUS picks in.

So better to just lose now than lose later. Amirite?

Also, we should hope that the conservatives on the supreme Court vote like liberals, otherwise, we might lose elections and get more liberals on the SCOTUS who vote like liberals.

Anonymous said...

"as America is deciding who we want to appoint the next Justice or two or three"

Err, isn't it the President who nominates and the Senate that confirms, or not? 'America' does not have a say.

"A lot of us may think it's time to bolster the liberal side of the Court"
It is a given that the Left always thinks it's time for more leftists on the court.

Robbo

Lewis Wetzel said...

The crazees, meaning the dominant wing of the Democrat party, are now stating that sex -- not gender, biological sex -- is "assigned at birth."
There are no words to describe how insane the "woke" democrats have become. They'll not only be frothing at the mouth during the Dem debates, they'll be competing with each other to see who is frothing the most at the dem debates.

My name goes here. said...

Birkel,
You are wrong.
Sorry.
But a customer's racism is a reason to discriminate against people based on race.

It is illegal, but it is a reason.

It took a Civil War, 600,000 dead American combatants, and a century of people fighting (and some dying) to alter the federal government to have the power to say that DBQ, and Birkel, and everyone else does not have the legal authority to discriminate based on race in employment. It took all of that for the government to say, that they were going to poke their collective nose into businesses to work hard for that reason (racial discrimination in hiring practices) to be illegal.

The question is will the Supreme Court decide that a law made in 1964 about sex discrimination has includes a wholly new interpretation that was not even dreamed of 55 years ago?

And the answer to that question should be a resounding no. And by that I mean if the Supreme Court had any relevance the ruling would be 8-1 or 9-0 that Title VII of the 1964 act does not include gender. That the question is left to congress. Otherwise we have a Tyranny of the Robes.

Dust Bunny Queen said...

@ Birkel

The question is: Whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation....

Race has already been decided and codified in the law. I would have no issue in hiring a person of any "race" as long as they can do the job and do it efficiently and without attitude. Neither would most of my customers. (Note: I am retired now, but my husband still has a business and has occasional employees)

They want to NOT re-write the laws, because that would be actual work and would be what they were elected to do......but instead to just "expand" them, using the Courts to re-write the laws to include anything and everything in order to force people to hire in ways that are detrimental to their businesses.

There are lots of things, besides race in hiring, that would cause negative effects in businesses.

It also depends on the type of business. In one where your employees interact directly, face to face, with the customers.....or one where you are doing a job that doesn't require your employees or crew to deal with people directly.

Even so.....When the government pays my workers and runs my business, then they can decide what to do. Since we are seemingly headed towards Socialism...that day may not be so far off.

In addition, the government cannot (yet) force customers to do business with you if they don't want to. They will just fade away and you go bankrupt.


Curious George said...

"Sex is different from gender — yes or no?"

No.

Chuck said...

Good riddance, Justice Kennedy. See you on your book tour. With a lot of questions.

Swede said...

When Ted Cruz replaces Ruth Buzzy Ginandtonic, the papers won't even cover cases like these anymore.

Dust Bunny Queen said...
This comment has been removed by the author.
Rob said...

I understand the case for bolstering the liberal side of the Court. Progressives in the United States are offended by a conservative Court. Their feelings are hurt. They feel threatened. They're triggered, goddamit, triggered! And so their needs must be served. It's the right thing to do.

gahrie said...

It took a Civil War, 600,000 dead American combatants, and a century of people fighting (and some dying) to alter the federal government to have the power to say that DBQ, and Birkel, and everyone else does not have the legal authority to discriminate based on race in employment.

Unless of course, you're discriminating against a White male. Then the government endorses, and often mandates, racial discrimination.

Birkel said...

DBQ:
Your statement was overly broad, was all I was saying.
Personally, I am not sure the freedom to contract and/or robust freedom of association should not be the better standard.
I'm at least interested in that line of inquiry.

Reversing things back to pre-FDR interpretations?
I am curious, heterodox, even.

Richard Fagin said...

Let's see, sex at birth is not gender, but sex in a statute is gender for purposes of discrimination law. The public meaning of "sex" at the time the law was enacted did not contemplate gender as being different from sex. Activists want the statute to mean what they want in order to accomplish their goals through litigation rather than public persuasion.

JackWayne said...

“Conservatives dominate the Supreme Court”.

Law prof assuming facts not in evidence.

rcocean said...

Roberts dominates the SCOTUS. He's the New Anthony Kennedy. The king is dead, long live the King.

Mark said...

It took a Civil War, 600,000 dead American combatants, and a century of people fighting (and some dying) to alter the federal government to have the power to say that DBQ, and Birkel, and everyone else does not have the legal authority to discriminate based on race in employment.

Well, no. It took the pervasiveness of Jim Crow for the Civil Rights Acts to pass and be upheld in the courts. It took blacks being unable to find for hundreds of miles a motel or restaurant that would serve them, it took entire industries that would not hire blacks or rent to them, leaving a large proportion of the population in a state of destitution.

Men who say they are women are not at all in the same situation. Nor same-sex couples. What is pervasive in their cases is many, many businesses and employers who will accommodate them. There is no need for force and compulsion since they can get what they want elsewhere.

Lurker21 said...

How did we reach the point where everything gets decided in the courts?

That's one of the problems with boastful "American exceptionalism."

Other countries without this rule of courts and lawyers have the right idea.

If they go the wrong way, it's because voters made a conscious and willing decision to do so.

Darrell said...

Businesses should be forced to accommodate the guy who thinks he's a dolphin. Pools, fresh fish. What's the big deal?

Darrell said...

The guy that runs the new Twilight Zone said he would never cast a pasty face white guy as the main lead in any of his projects. Luckily, that's perfectly fine for him to do--even in California.

~ Gordon Pasha said...

Women athletic departments wait with bated breath to see if they will be put out of business. And countless girls now training should just sit it out until this is decided.

Mark said...
This comment has been removed by the author.
Hagar said...

If we can't win at the ballot box, let's stack the Supreme Court.

Mark said...

Note this --

EVERY ONE of the justices on the Supreme Court have hired and will only hire those clerks who agree with them on jurisprudence and ideology. And if any of their clerks were to write memos or draft opinions that were adamantly contrary to what the justice believes and holds, or were to go public in ways that were against what the justice stands for -- then the justice would immediately terminate their relationship.

Why? Because of wrongful discrimination? No. Because of the inherent conflict of interest. Employees are free to do or think or be whatever they want. But to do so in a way that is contrary to the employer is necessarily inconsistent with the duty they owe to not harm the employer's interests or identity.

Employees are free to do or think or be whatever they want. They are also free to work someplace else if they cannot or do not want to conform to the employer's way of things.

Howard said...

Electoral college good, judicial review bad, congressional over sight even worst

rhhardin said...

I never know, when reading about a transgender woman, whether it's talking about a man or a woman. Which always means, what they started out as.

rhhardin said...

It's an Althouse hot button issue, in any case.

rhhardin said...

Is penis envy still a thing.

Dust Bunny Queen said...

@Birkel

The problem with a one size fits all type of law used to fix REAL WRONGS such as refusal to hire merely based on race is that it overly corrects and creates iniquities.

Example. Pretend I am hiring for a position of accountant. I have several candidates. I would hire based on:

previous work experience
credentials, degrees
references
work ethic (as best I can discern)
compatibility with and respect of myself as employer (actually one of the top importances)
how much salary I'm willing to pay

IF the best candidate turns out to be Asian or even (gasp) a White Nerd instead of the Rasta guy from Haiti...my not hiring the Rasta has nothing to do with anything other than the above criteria. The best qualified candidate could be a little green man from Mars and I would hire him.

HOWEVER, because of the laws I could be subject to a bunch of expensive and time wasting complaints of false discrimination because MY ability to hire is superseded by politically correct bullshit.

One size does not fit all and laws such as are being proposed are meant to cripple the ability of the business owner to hire the BEST person.

Dust Bunny Queen said...

My bad... Rastafarians are from Jamaica...I guess.

Dave Begley said...

Spoke to a person last week who saw three trans in Omaha in one week.

Where were these people five years ago?

Kevin said...

A lot of us may think it's time to bolster the liberal side of the Court.

Why? Are the cases not being decided properly?

Or are they being decided properly but you don't like what the law actually says?

Or does it have nothing to do with how the cases are decided, but you think court appointments must be "fair" in a "my country vs. your country" sense of fairness?

If it's the last choice, the country has a bigger problem than who sits on the Supreme Court.

iowan2 said...

Discrimination in hiring is just fine. As long as you discriminate against icky people.

A University of Iowa female Christian inside the Law Collage was denied a promotion. (Teaching legal writing?) because she was openly Christian, not evangelizing, just let people know she was a person of faith.
She sued for being passed over and had facts to support her conclusion. She appealed all the way to the Iowa Supreme Court and never did prevail. So discrimination is just fine. I think this case is strong precedent for a self categorizing person seeking protected status.

Lee Moore said...

Of course sex is different from gender.

One word has an unambiguous meaning : describing the two (and only two) types of gamete, big or small; and by extension the creatures that manufacture each type; and by even further extension the processes by which the two types of gamete are typically brought into functional proximity.

The other word is a faery shapeshifter, which, even when the user has a definite meaning in mind, cannot maintain this same meaning for two sentences in a row.

Otto said...

Just remember Ann was a law professor for more than 30 years. Can you imagine the liberal propaganda she fed her students. Now you know why the law profession is a mess and infused overwhelmingly with leftists. Their objective is not justice but power.

Maillard Reactionary said...

AA said: "Sex is different from gender — yes or no?"

Just torquing us again, Professor?

As our resident Grammarian and Etymologist, you know damn well that only words have gender. Humans, and in fact, every organism in kingdom Animalia have a sex (in most cases, just one per lifetime, with some interesting exceptions).

The sex of a human may be deduced by examination of the individual's chromosomes: One with an X and a Y chromosome are biologically what we call "males".

Thinking doth not make an X a Y, nor a male a female (or vice versa), despite how much one might wish otherwise.

Nor does mental illness change this biophysical reality.

Well-functioning societies (a matter of degree, and one might say taste, of course) handle questions about how to deal with those few unfortunate individuals whose mental or developmental abnormalities make others uncomfortable (assuming said individuals are otherwise harmless) informally, relying on people's sense of fair play and live-and-let-live, rather than attempting to codify it into law (judge-made, or otherwise).

Otherwise, an infinite regress of forced accommodations and preferences will be established, at the cost of individual liberty, and be virtually impossible to undo.

Which, of course, is the whole reason why the Left pushes these "issues".

Joan said...

Dave Begley asked, Where were these people five years ago?

Oh, they were out there somewhere, maybe not in Omaha (Omaha!), but they limited their trans-behaviors to certain places because there was no general public acceptance back then. When formerly taboo behaviors become "accepted," you get a lot more of them. You end up, for example, with programs where drag queens read to little kids in libraries. Drag is, more than anything, a form of social commentary. Why anyone thinks children need to be around people who are basically sarcastic for a living is beyond me.

Of course drag culture is not trans culture, but there is some overlap from what I can gather.

Back to the subject at hand: it would be awesome if the Court threw this back to Congress where it belongs. I'm worried that they won't for precisely the reasons Althouse stated. Roberts and Kavanaugh both give political considerations more weight than legal ones. (insert eye-roll here)

Jersey Fled said...

Simple solution: If Congress wants to protect certain rights on the basis of "gender" pass a law saying so.

End of discussion.

Marcus Bressler said...

Bravo, Phidippus.

THEOLDMAN

Ignorance is Bliss said...

Birkel said...

I am curious, heterodox, even.

I'm pretty sure you can be fired for that...

n.n said...

They're notably exclusive. Gender includes the single quintessential mental attribute: sexual orientation. The transgender spectrum includes homosexuals, bisexuals, and neo-sexuals. Transvestites are edge cases that breach the threshold of natural imperatives and are either transgender or trans-social.

n.n said...

Protecting the "right" to kill your unborn child has taken precedence over fundamental liberal value

Liberalism is, in principle, a divergent ideology, which, among other things, tolerates human sacrifice. In Stork They Trust. #PrinciplesMatter #HateLovesAbortion

Bruce Hayden said...

“We don't need the Supreme Court violating the plain intent of the legislature and the president when the 1964 Act was adopted. We know that the Congress and the president can fix any shortcomings in Title VII. All they have to do is build a political consensus. That's how the 1964 Act was adopted in the first place.”

Apparently just introduced in the Dem controlled House. Not that most of the Dems really believe in it but to be able to use their lack of tolerance , evidenced by. Outing against the legislation, against Republicans in the Senate, and potentially against Trump if he vetos it.

Bay Area Guy said...

Any woman who marries a straight man, and won't even consider marrying a Lesbian, is practicing invidious discrimination based on gender identity and sexual orientation.

Time to lock up all these discriminatory housewives. Now!

n.n said...

Sex is genotype, binary, male or female. Gender is phenotype, choice, binary, masculine and feminine, respectively, refers to physical and mental (e.g. sexual orientation) attributes correlated with sex. Significant divergence (e.g. diametric) from normal is transgender, some more stable (e.g. homosexual) than others.

Caligula said...


Of course, those who voted for Title IX would never have imagined that the meaning of sex could be stretched to mean "gender identity."

But those who voted to ratify the 14th Amendment surely could never have imagined that it could be stretched into a mandate for same-sex marriage.

Once the Rubicon of creative interpretation has been crossed, original intent becomes moot.

Sebastian said...

"Conservatives dominate the Supreme Court, and that may mean that the rights advocates lose all these cases"

See, after all this time, after the coup attempt, after 2+ years of lefty insanity, Althouse still buys the prog meme.

Of course, conservative are the actual "rights advocates"--advocating the right to have only rights defined in the Constitution or federal law be protected by federal judges, having the right to expand such rights only by democratic vote, and having the right not to be subject to judicial tyranny.

"A lot of us may think it's time to bolster the liberal side of the Court."

Yes, we know.

"We will get a great chance to think about whether the liberals or the conservatives seem properly judicial and better in touch with what we imagine the law really means."

Ah yes, it's about "imagining what the law really means."

What it really means is that, even with a supposedly "conservative" SCOTUS majority, we are well and truly f***ed in the long run.

Anonymous said...

Glad I waited long enough for Phidippus to make my point better than I would have. He’s absolutely right of course. This whole issue is jus Humpty Dumpty.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that's all.”

Amadeus 48 said...

Bow down before the fury of the screeching hordes of the transgendered, misgendered, regendered, ungendered, bigendered, multigendered, and questioning. Those with mental problems shall inherit the earth. Well may you wonder why all do not fall down at the feet of your victimhood.

It's because you are mentally ill.

rhhardin said...

Gender bender and argle bargle are feminine rhymes.

Fernandinande said...

What part of the Constitution allows the federal government to define, for private persons or organizations, the disallowed reasons to hire or not hire another person?

Anonymous said...

The law can be whatever the legislatures and courts decide, I for one will stand with the Key & Peele sketch on the subject of gender expression in the workplace.

https://videosift.com/video/Key-Peele-Office-Homophobe

stevew said...

Not being a lawyer I wonder if consideration will be given to the idea that people not be fired or terminated for things unrelated to their job performance or which having no bearing on their job or are private arrangements and behaviors.

walter said...

Guessing tandem jumps were at issue.

mtrobertslaw said...

If an important classification of human beings has been determined for eons by whether a person has type A or type B genitalia and type A is named male and type B is named female, then what does the word "gender" mean? It can't mean "male"; and it can't mean "female".
The only conclusion left is that it is simply a sound with no meaning at all.

rhhardin said...

We'll need a new way to remember which electrical plugs are male and which are female.

walter said...

inees and outees

Rosalyn C. said...

Gender and sex are two different things, or so we are told, but not really. For instance, when a transgender individual gets "sex confirmation surgery" and hormone therapy the aim is to adopt the stereotypical sexual appearance of the gender with which he/she identifies. Obviously transgenders see sex and gender the same as everyone else does, and in the most superficial manner. If not, there would be absolutely no need for all the alterations or to change their outward appearance to conform. That's why this subject is so confusing and culturally regressive. So far I have not heard of any transwomen getting transplanted ovaries or a functional uterus or transmen getting transplanted testes -- it's all about adopting the superficial stereotypical appearances -- breasts for transwomen and beards for transmen. I haven't read anything about transwomen getting ovary transplants, etc.

Rosalyn C. said...

Maybe the existing law prohibiting discrimination based on sex also applies to discrimination based on the appearance of sex?

Ken B said...

Am I the only one who thinks that saying “gender is a continuum “ contradicts saying there are multiple genders? You have multiple things when they are discrete. There are a dozen kinds of Mazda. There are not a dozen kinds of height, there is a continuum of height.

furious_a said...

Sex is different from gender — yes or no?

Yes, because sex isn't a biological dead-end.

Browndog said...

Is not a crime against "gender identity" a thought crime?

Ken B said...

I think AA has shown her bubble here. She thinks trans cases will mobilize voters against letting Trump pick justices. My guess is that those who want trans friendly judging are already motivated and active. This is instead a “silent majority” thing: it is more likely to motivate new support for Trump. Althouse shows evidence here of being quite disconnected from what most people think.

Greg Q said...

"Sex is different from gender — yes or no?"

Sex is determined by biology.

Gender is meaningless BS


"sex discrimination in the employment context rarely has to do with the genitalia. It's about how the employee looks and acts and speaks and the various assumptions and reactions that happen in the mind of others."

Wrong. Sex discrimination has everything to do with genitalia. The law wasn't about protecting people from being fired because of their behavior, it was protecting people from being fired because of their genetalia.

You want a Federal law that protects something else? Get Congress to pass it.

chuck said...

We need more on the liberal side? I think not. They cannot be trusted to hold their politics in check and refrain from rewriting the constitution. Supreme Court judges should not rule, they should interpret.

Kirk Parker said...

"The crazees, meaning the dominant wing of the Democrat party, are now stating that sex -- not gender, biological sex -- is 'assigned at birth.' "

"Some idiot doctor thought this was a dick! I'm not actually sure *what* it is, but please please cut it off!"

Kevin @ 11:14 am,

Oh, indeed the country as far bigger problems. This court business is just a symptom.


Joan,

Are you seriously saying the Kavanaugh is as bad as Roberts? Please, I can only handle so much discouragement at once!

Dust Bunny Queen said...

Sex discrimination has everything to do with genitalia. The law wasn't about protecting people from being fired because of their behavior, it was protecting people from being fired because of their genetalia.

Exactly. Behavior, attitude, competence, reliability, ability to do the freaking job....all factors that can be used to hire or FIRE someone. Those have nothing to do with a person's sex/genitalia.

Firing or not hiring JUST because the person is a female or male a completely different thing.

A female can be a fire fighter IF...BIG IF...she is physically strong enough and qualified.

A female should NEVER be a firefighter merely based on the fact that she is female and we want to fill some sort of PC goal.

Same thing, as well, goes for males in any occupation.

Having a one size fits all ruling based on inconsequential factors and special treatment for those extra special protected groups IS why we have a problem.

Mark said...
This comment has been removed by the author.
Mark said...

Understand that it is about more than hiring and firing.

It is also about a "hostile work environment." That means not calling a man "he" if he says that he is a woman.

It means embracing a lie. It means that you must call someone you know to be a man "she." It means that if you persist in the unalterable truth that a man is a man and a woman is a woman, then the whole weight of the judicial system can come down on you.

Freedom is the freedom to say that two and two make four. But there is no freedom in the Orwellian Trans-world. You must affirm, proclaim and believe that two and two make five.

0_0 said...

Sex = gender. Gender identity is something else, and should not be protected.

'Misgendering' someone is not hate speech, either.

JAORE said...

" Conservatives dominate the Supreme Court, and [A] lot of us may think it's time to bolster the liberal side of the Court."

Opening salvo in the "Why I voted for the last clown left in the car instead of Trump, 2020."

Douglas B. Levene said...

Balancing the interests of transgender people in living normal lives with the interests of young women in sexual privacy and modesty is what's at stake here. I don't think that's the job of the Court in this instance. There's nothing in the legislative history that suggests Congress was thinking about anything other than biological men and women when it used the word "sex" in the statute. There's nothing to suggest Congress engaged in the balancing mentioned in my first sentence. The Court should read the statute as it was written and leave it to Congress to make changes if any are thought necessary.

Ingachuck'stoothlessARM said...

why will it be limited to gender identification?
why not also consider age, race, ability, etc identification?
How will the infinite manifestations of one's imaginings be accommodated?

gilbar said...

Yeah. Infanticide is such a good election issue to run on.

actually, it all ties together rather well...

Parents!
When Your Daughter is Raped in the school shower, by a couple of Chix with Dicks...
Won't you be Glad that Abortions are now covered by your insurance, no matter HOW Long you wait?

gilbar said...

Conservatives seem to dominate the Supreme Court,but thanx to Roberts: DON'T and that may mean that the right's advocates lose all these cases, just as America is deciding who we want to appoint the next Justice or two or three. A lot of us may think it's time to bolster the Conservative side of the Courtwith REAL CONSERVATIVES

fify!

n.n said...

Sex is genotype. Gender is phenotype, and perhaps choice if we acknowledge freewill, which includes physical and mental attributes, notably the quintessential sex-correlated gender attribute: sexual orientation. The transgender spectrum includes attributes that are significantly, even diametrically, divergent from normal. So, normalize, tolerate, or reject?

why not also consider age, race, ability, etc identification?

Age will never be a viable choice, because it would properly characterize Pro-Choice/elective abortion (i.e. wicked solution) as a civil rights violation, including: summary judgment, cruel and unusual punishment, and class-based exclusion with a diversity enhancement, and what is clearly a human rights violation.

Fen said...

There. Are. Four. Lights.

You can be delusional to your hearts content.

You do NOT have the right to force me to deny reality.

Fen said...

" We will get a great chance to think about whether the liberals or the conservatives seem properly judicial and better in touch with what we imagine the law really means."

OMG. That's not how any of this works.

Hang on a sec, our hostess is a law professor. I'm sure she can explain better than me.

(just don't dare say you find the focus on transexuals to be boring)

stlcdr said...

How does one know about another persons gender? How about sexual orientation? These can be kept out of the work place quite easily. If it filters into the workplace, can it not be considered sexual harassment? Perhaps that is why they refer to it as gender, since there isn’t gender harassment.

I’m sure these people were dismissed, not because of gender or sexual bias, but because their behavior was disruptive.

Lucien said...

Many states have statutes that specifically bar harassment and discrimination based on sexual orientation. For plaintiffs in those states the absence of aTitle VII remedy for the same claim will not make a huge practical difference.

It will be fun to watch the Plaintiffs’ attorneys in these cases argue for textualism and the original public meaning of “because of sex”, and maybe even quote some Scalia opinions attacking legislative intent.

n.n said...

How does one know about another persons gender? How about sexual orientation?

Societies go out of their way to create a favorable juxtaposition of the sexes: male and female, by emphasizing certain gender (masculine and feminine) attributes. For example, men wear pants and women wear dresses is a social construct with a biological and physiological basis. However, while this distinction has a value to normalize viability, and mitigate confusion, it has limited utility beyond a few sex (e.g. reproduction, dating) and gender (e.g. physiological differences)-related contexts. That said, there are some clear gender (i.e. physiological and mental) differences between the sexes, including, notably, sexual orientation.

Greg Q said...

ouglas said...
Balancing the interests of transgender people in living normal lives with the interests of young women in sexual privacy and modesty is what's at stake here.


"Transgender" people are, by definition, not normal. If they want a live a normal life, they can stop calling themselves transgender.

In choosing to balance the desire of the mentally ill to force the rest of us to play along with their delusion, vs the interest of the sane people not to have to put up with delusions, it is the interests of the sane people that should always triumph.

Which is why I will be voting for, and campaigning for, Trump in 2020 (neither of which I did in 2016)

PM said...

Sex is what you are; gender is what you say you are.
One is fact; one is opinion.
Isn't justice blindfolded because she is weighing facts?

PM said...

stlcdr: How does one know about another persons gender?

They're like vegans. They tell you within a minute.