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SCOTUS Transgender Ruling and Example of Legislating From the Bench?

 
Antisocialdarwinist
 
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Antisocialdarwinist
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17 June 2020 16:58
 

At issue is whether the word “sex” from a 1964 employment law can be interpreted to include gay and transgender people.

From the NY Times (the link is blacklisted by the forum):

The Supreme Court is generally not very far out of step with popular opinion, and large majorities of Americans oppose employment discrimination based on sexual orientation, and substantial ones oppose it when based on gender identity. More than 200 major corporations filed a brief supporting the gay and transgender employees in the cases before the court.

This implies that the Times is all for SCOTUS to interpret old laws in the context of present popular opinion. Which sounds like legislating from the bench to me.

Justice Goresuch, writing for the majority, wrote (again from the Times):

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” he wrote.

“It is impossible,” Justice Gorsuch wrote, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

But this contradicts a claim made by the attorney representing the employees! From The Federalist:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” Gorsuch wrote in the majority opinion. Alito torches this argument in numerous ways. Here’s just one:

At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would ‘not’ be sex discrimination. And she was right.

At issue is not whether employers should be able to discriminate against gays and transgenders, but whether the Court should be redefining words like “sex.” Which clearly did not mean “sexual orientation and gender identity” when the 1964 law was passed. If we don’t want gays and transgenders to be discriminated against, congress should pass a law prohibiting it. SCOTUS shouldn’t be changing the definition of words in order to stay in “step with popular opinion.”

 
 
Poldano
 
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18 June 2020 00:42
 

I agree that Congress should pass such a law.

However, I find Alito’s opinion problematic because there is no way to be sure of someone’s sexual orientation or gender identity without knowing the subjective mind of that individual. One may have evidence that highly correlates with sexual orientation or gender identity from an individual’s actions or manners, but acting on that basis comes very close to sex discrimination, and may be indistinguishable from it, because the actions and manners displayed are seldom symmetrical. One kind of symmetrical action is cohabitation; it would have been ironic indeed if having a same-sex housemate would someday have been considered a valid reason for denial of employment.

 
 
Nhoj Morley
 
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18 June 2020 08:16
 

This is an example of two wrongs making a gay right.

Does anyone doubt that a properly functioning and less exclusionary legislature would have presented the Court with the means of doing it as the Founders intended by now? Is it a further sign that our system is broken? Duh.


FYI- Forum admins have no control over or access to this site’s inner workings and no knowledge of why or which links are prohibited.

 
 
Jb8989
 
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18 June 2020 08:40
 

Yeah but SCOTUS judges interpret as the thing that they’re supposed to do. Because they’re chosen by the P rather than elected by the D, they’re at face value biased as shit, BUT, they’ve historically proven to morph into decent bobbleheads who are painfully aware that there’s an inherently antidemocratic fashion to their role as inbetweeners stuck being both enforcers of the constitution and players in a represented democratic game. This was all about that under times like this.

Originalists say take words as they were, but yet, one solid argument I can’t get around is that the word sex is and always was about going down to pound town. For too long we cared about who anyone brought with them to pound town. The court back in the sixties knew it enough to know that they couldn’t really say it. Check out this little number from a Title II interpretation on the same 1964 Civil Right Act, where SCOTUS was trying to resolve racial discrimination in association with cash flow (i.e. the commerce clause):

“But the fact that we’re dealing with a moral problem does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse.” Commercial Intercourse? They were saying that congress fucks with cash and since black people started making some they wanted to fuck with not fucking with black people as much. They went on to say, “It is said that the operation of the motel here is of purely local character.” “The operation of the motel?” Like where all the gays were going to bang in the closet so they wouldn’t lose their jobs? I mean, I’m being funny, but sex includes banging and how you want to be banged no matter how you want to slice it IMO.

 
 
mapadofu
 
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mapadofu
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18 June 2020 09:32
 

It’s been my experience that crying “judicial activism” cannot be distinguished from “I don’t like this ruling”.

How do we know what it meant back in ‘64?  To me, it seems obvious that transgender status is an aspect of sex even by the most narrow construal of that word. 

Let’s see if I got the argument right:  because our representatives back in 1964 thought it was fine to discriminate on the basis of sexual orientation, but weren’t dumb enough to actually put that literally in the law, we have to assume that a law that precludes discrimination on the basis of sex does not cover discrimination on the basis of sexual orientation.

 
Antisocialdarwinist
 
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18 June 2020 19:48
 
Poldano - 18 June 2020 12:42 AM

I agree that Congress should pass such a law.

However, I find Alito’s opinion problematic because there is no way to be sure of someone’s sexual orientation or gender identity without knowing the subjective mind of that individual. One may have evidence that highly correlates with sexual orientation or gender identity from an individual’s actions or manners, but acting on that basis comes very close to sex discrimination, and may be indistinguishable from it, because the actions and manners displayed are seldom symmetrical. One kind of symmetrical action is cohabitation; it would have been ironic indeed if having a same-sex housemate would someday have been considered a valid reason for denial of employment.

I’m not sure why being sure of someone’s sexual orientation or gender identity matters. If an employer isn’t sure that an employee is transgender or gay, why would they fire that person for being transgender or gay?

 
 
Antisocialdarwinist
 
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18 June 2020 19:52
 
Nhoj Morley - 18 June 2020 08:16 AM

This is an example of two wrongs making a gay right.

Does anyone doubt that a properly functioning and less exclusionary legislature would have presented the Court with the means of doing it as the Founders intended by now? Is it a further sign that our system is broken? Duh.


FYI- Forum admins have no control over or access to this site’s inner workings and no knowledge of why or which links are prohibited.

Witty, but I disagree. Regardless of how you feel about this particular case, the broader issue of SCOTUS reinterpreting the meaning of words so they can render decisions that have popular support seems incompatible with a well functioning republic. Congress should do their job.

 
 
Antisocialdarwinist
 
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18 June 2020 20:10
 
mapadofu - 18 June 2020 09:32 AM

It’s been my experience that crying “judicial activism” cannot be distinguished from “I don’t like this ruling”.

How do we know what it meant back in ‘64?  To me, it seems obvious that transgender status is an aspect of sex even by the most narrow construal of that word. 

Let’s see if I got the argument right:  because our representatives back in 1964 thought it was fine to discriminate on the basis of sexual orientation, but weren’t dumb enough to actually put that literally in the law, we have to assume that a law that precludes discrimination on the basis of sex does not cover discrimination on the basis of sexual orientation.

That’s a tautology. I don’t like the ruling because it’s judicial activism.

I’d say that the word, “sex,” meant pretty much the same thing in 1964 that it does today: “The distinction between sex and gender differentiates a person’s biological sex (the anatomy of an individual’s reproductive system, and secondary sex characteristics) from that person’s gender, which can refer to either social roles based on the sex of the person (gender role) or personal identification of one’s own gender based on an internal awareness (gender identity).” Transgender status is an aspect of gender, not sex.

Your argument is tantamount to the court deciding years after the fact that the amendment giving black men the right to vote, passed in 1870, also applies to women—redefining “black suffrage” to mean “universal suffrage” because of popular support for women’s right to vote. No, that’s not how it’s supposed to work. Congress in that case did its job by passing the nineteenth amendment.

Congress has become derelict, passing their responsibilities and authority on to the other two branches of government. Why bother with them at all? Why not just have the executive and judicial branches? I’m not sure it would make much difference at this point. The president could legislate with executive orders and SCOTUS could declare the unpopular ones unconstitutional.

 
 
Nhoj Morley
 
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18 June 2020 20:28
 
Antisocialdarwinist - 18 June 2020 07:52 PM


Witty, but I disagree. Regardless of how you feel about this particular case, the broader issue of SCOTUS reinterpreting the meaning of words so they can render decisions that have popular support seems incompatible with a well functioning republic. Congress should do their job.

Somber, but I agree. Congress should do its job. The Court was addressing legislative dysfunction with further dysfunction. I’m not sure how I feel about it.

 
 
mapadofu
 
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18 June 2020 22:04
 
Antisocialdarwinist - 18 June 2020 08:10 PM
mapadofu - 18 June 2020 09:32 AM

It’s been my experience that crying “judicial activism” cannot be distinguished from “I don’t like this ruling”.

How do we know what it meant back in ‘64?  To me, it seems obvious that transgender status is an aspect of sex even by the most narrow construal of that word. 

Let’s see if I got the argument right:  because our representatives back in 1964 thought it was fine to discriminate on the basis of sexual orientation, but weren’t dumb enough to actually put that literally in the law, we have to assume that a law that precludes discrimination on the basis of sex does not cover discrimination on the basis of sexual orientation.

That’s a tautology. I don’t like the ruling because it’s judicial activism.

I’d say that the word, “sex,” meant pretty much the same thing in 1964 that it does today: “The distinction between sex and gender differentiates a person’s biological sex (the anatomy of an individual’s reproductive system, and secondary sex characteristics) from that person’s gender, which can refer to either social roles based on the sex of the person (gender role) or personal identification of one’s own gender based on an internal awareness (gender identity).” Transgender status is an aspect of gender, not sex.

Your argument is tantamount to the court deciding years after the fact that the amendment giving black men the right to vote, passed in 1870, also applies to women—redefining “black suffrage” to mean “universal suffrage” because of popular support for women’s right to vote. No, that’s not how it’s supposed to work. Congress in that case did its job by passing the nineteenth amendment.

Congress has become derelict, passing their responsibilities and authority on to the other two branches of government. Why bother with them at all? Why not just have the executive and judicial branches? I’m not sure it would make much difference at this point. The president could legislate with executive orders and SCOTUS could declare the unpopular ones unconstitutional.

How do you discriminate between between
transgender and cisgender people, e.g. hire one group but not the other, without considering the sex of the individual?

trans/cis is defined as a relationship between gender and (birth) sex.  So, if I only want to hire trans people, I necessarily have to consider their birth sex as part of my decision process.  Thus, this process discriminates on the basis of sex.

This might be a stretch, but here goes.  I want to discriminate between homo/hetero sexual people.  How do I do this? By considering the sex of their sexual partners.  In this case I’m considering the the sex of someone, their partner, in making my decision.  I’m discriminating on the basis of sex.  Though, technically not violating the law, since, by the strict letter of the law, I can’t discriminate /you/ on the basis of /your/ sex, but the law doesn’t explicitly state that I can’t discriminate against you on the basis of your partner’s sex (or, as a goofy example, the sex of your children -  e.g. only hire people with female children).

Anyhow, I’m not convinced that lawmakers in 1964 actually considered the difference between sex and gender when constructing the language of the law.

Btw, we’re in agreement that things would be better if Congress took on a more proactive role.

 

 
Poldano
 
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18 June 2020 23:14
 
Antisocialdarwinist - 18 June 2020 07:48 PM
Poldano - 18 June 2020 12:42 AM

I agree that Congress should pass such a law.

However, I find Alito’s opinion problematic because there is no way to be sure of someone’s sexual orientation or gender identity without knowing the subjective mind of that individual. One may have evidence that highly correlates with sexual orientation or gender identity from an individual’s actions or manners, but acting on that basis comes very close to sex discrimination, and may be indistinguishable from it, because the actions and manners displayed are seldom symmetrical. One kind of symmetrical action is cohabitation; it would have been ironic indeed if having a same-sex housemate would someday have been considered a valid reason for denial of employment.

I’m not sure why being sure of someone’s sexual orientation or gender identity matters. If an employer isn’t sure that an employee is transgender or gay, why would they fire that person for being transgender or gay?

It’s entirely possible, and actually quite common, for people to be absolutely sure of something that is not true.

 
 
Poldano
 
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18 June 2020 23:36
 
mapadofu - 18 June 2020 10:04 PM

...

Anyhow, I’m not convinced that lawmakers in 1964 actually considered the difference between sex and gender when constructing the language of the law.

...

The distinction between gender and sex may be a relatively recent innovation. The following online dictionary definition holds that the difference lies in that gender applies to social attributes assigned by sex.

1. either of the two sexes (male and female), especially when considered with reference to social and cultural differences rather than biological ones. The term is also used more broadly to denote a range of identities that do not correspond to established ideas of male and female.
“a condition that affects people of both genders”

One of the points I missed in my previous post in this thread is that it is unknown to what extent gender identification depends upon biological factors, independent of cultural factors or individual preference. Biological factors can include more than the effects of nominal chromosomes, and can be affected by biochemical variations induced by the environment, including social and psychological factors beyond the subject’s knowledge or control. If gender identification depends critically on biological factors, then the ruling as it stands may be textually appropriate. That is because the overall intent of the of the 1964 Civil Rights Act was to remove any biological variation over which an individual does not have voluntary control as a criteria for discrimination in employment and several other socially-defined roles. [edit] unless the variation affects an attribute that is essential to the nature of the role (like having a uterus). If the law is imperfect in its statement of its intent, the most likely reason is that the relevant scientific notions had not yet been well developed; indeed, in my opinion they are still not.

[ Edited: 18 June 2020 23:41 by Poldano]
 
 
Twissel
 
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19 June 2020 07:59
 

If you can reduce LGBQT discrimination down to gender, and there is a law that protects against discrimination because of gender, then that law protects against LGBQT discrimination.

Laws have consequences.

This is nothing like Scalia overturning all precedence on gun legislation.

 
 
Antisocialdarwinist
 
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19 June 2020 08:03
 
Poldano - 18 June 2020 11:14 PM
Antisocialdarwinist - 18 June 2020 07:48 PM
Poldano - 18 June 2020 12:42 AM

I agree that Congress should pass such a law.

However, I find Alito’s opinion problematic because there is no way to be sure of someone’s sexual orientation or gender identity without knowing the subjective mind of that individual. One may have evidence that highly correlates with sexual orientation or gender identity from an individual’s actions or manners, but acting on that basis comes very close to sex discrimination, and may be indistinguishable from it, because the actions and manners displayed are seldom symmetrical. One kind of symmetrical action is cohabitation; it would have been ironic indeed if having a same-sex housemate would someday have been considered a valid reason for denial of employment.

I’m not sure why being sure of someone’s sexual orientation or gender identity matters. If an employer isn’t sure that an employee is transgender or gay, why would they fire that person for being transgender or gay?

It’s entirely possible, and actually quite common, for people to be absolutely sure of something that is not true.

But isn’t that a different issue? Firing someone because you’re absolutely sure of something about them that isn’t true? If I fire you, for example, because I’m absolutely sure you’re a member of the KKK, and it turns out you’re not a member of the KKK, wouldn’t you have legal recourse? Why wouldn’t the same recourse apply in the case of employees whose employers are absolutely-but-mistakenly sure they’re gay or transgender?

 
 
Antisocialdarwinist
 
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19 June 2020 08:06
 
Twissel - 19 June 2020 07:59 AM

If you can reduce LGBQT discrimination down to gender, and there is a law that protects against discrimination because of gender, then that law protects against LGBQT discrimination.

Laws have consequences.

This is nothing like Scalia overturning all precedence on gun legislation.

Gender or sexual orientation. Which are different things than sex. Sex being the word used in the original law. Rather than SCOTUS redefining the word, “sex,” congress should do its job and pass a law making it illegal to discriminate based on gender or sexual orientation.

 
 
Twissel
 
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19 June 2020 08:49
 
Antisocialdarwinist - 19 June 2020 08:06 AM
Twissel - 19 June 2020 07:59 AM

If you can reduce LGBQT discrimination down to gender, and there is a law that protects against discrimination because of gender, then that law protects against LGBQT discrimination.

Laws have consequences.

This is nothing like Scalia overturning all precedence on gun legislation.

Gender or sexual orientation. Which are different things than sex. Sex being the word used in the original law. Rather than SCOTUS redefining the word, “sex,” congress should do its job and pass a law making it illegal to discriminate based on gender or sexual orientation.

They might be different things, but they aren’t independent.
One follows from the other, which is sufficient to make the law applicable.


It is fascinating how self-styled “literalist” judges insist we only look at the text of the law when it suits them, but at the context of what the lawmakers intended when it doesn’t.
It’s “heads I win, tails you lose”.
This behavior makes is so easy to identify activist judges such as Kavanaugh and Alito.

 

 
 
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