Recommended by Ricochet Members Created with Sketch. My Problem with Gorsuch’s Ruling

 

I posted this in Epstein’s post, but the thread is dead. So far, the assertion is that Gorsuch used the definition of “sex” in a manner that wasn’t appropriate. It occurred to me (and thank you, @saintaugustine — I wouldn’t have gotten here without you) is that he changed how “discriminate” is used.

[The reason why Gorsuch’s premises] are off is because it assumes that there is, in the nature of one’s sex, absolutely nothing that differentiates it from its opposite.

Gorsuch’s opinion is absolutely based on a wrongful (biologically) premise that there is no distinction between male and female.

He takes the CRA, that says you can’t discriminate, and effectively states that discrimination means telling the difference between two things.

Now that is a legitimate definition of the word “discriminate” but it should be quite clear that that was never the intended use of the word in the original law.

There is a reality that he is forcing the population to accept that is a bald faced lie: that there is absolutely no difference between a man and a woman.

It is not true. A man is different than a woman. A homosexual marriage is completely different from a heterosexual marriage. Gay couplings (sex) are fundamentally different from heterosexual couplings.

Nowhere in the law do we refuse to acknowledge that men and women are different. But Gorsuch’s ruling forces us to act as if they are not differentiated in the least.

That’s my case in a nutshell.

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  1. Percival Thatcher
    Percival Joined in the first year of Ricochet Ricochet Charter Member

    Anybody who can’t come up with a biological difference between men and women shouldn’t be on the Supreme Court. Anybody who can’t do that probably shouldn’t have a drivers license, either.

    • #1
    • June 26, 2020, at 4:36 PM PDT
    • 10 likes
  2. Gene Killian Coolidge

    Here’s an interesting paragraph from the opinion:

    Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.

    Bostock v. Clayton County, No. 17-1618, at *14-15 (June 15, 2020).

    This is interesting to me for two reasons. First, I wholeheartedly agree that all Yankee fans should be fired. (Kidding, kidding.) Second, Gorsuch uses contractions (“didn’t,” “it’s”) several times in his opinion. I’ve been practicing law for a long time, and rarely have I seen that in a published opinion. Times change.

    And maybe that’s the point. As much as we want judges to stay with the original intent, and as much as we know that the drafters of Title VII weren’t thinking about transgender people in 1964, we have to expect that even conservative judges will from time to time show some flexibility in an effort to implement the overarching policy goal of a statute. Very few will be as strict as Scalia was. That’s just the way it is.

     

     

    • #2
    • June 26, 2020, at 4:39 PM PDT
    • 3 likes
  3. Saint Augustine Member

    Stina:

    [The reason why Gorsuch’s premises] are off is because it assumes that there is, in the nature of one’s sex, absolutely nothing that differentiates it from its opposite.

    Gorsuch’s opinion is absolutely based on a wrongful (biologically) premise that there is no distinction between male and female.

    I’m not sure that’s right. Maybe something like that is in his conclusion, but I’m not aware that it’s in the premises. In my working understanding of the Gorsuch line of reasoning, this distills his thought:

    Jim is having sex with a woman on the weekends. The boss doesn’t care. Jill is having sex with a woman on the weekends, and the boss fires her for it. The only relevant difference is that Jim is male, and Jill is female. Therefore the boss discriminated on the basis of sex.

    It’s a terrible argument. (Critiqued on the earlier thread here, here, and elsewhere.)

    But it doesn’t deny the the difference between male and female in its premises.

    • #3
    • June 26, 2020, at 4:43 PM PDT
    • 4 likes
  4. Saint Augustine Member

    Stina:

    It occurred to me . . . that he changed how “descriminate” is used.

    . . .

    He takes the CRA, that says you can’t discriminate, and effectively states that discrimination means telling the difference between two things.

    Now that is a legitimate definition of the word “descriminate”, but it should be quite clear that that was never the intended use of the word in the original law.

    Yeah, that seems about right. (Based on my working–and extremely fallible–understanding.)

    • #4
    • June 26, 2020, at 4:45 PM PDT
    • 1 like
  5. Bob Wainwright Member

    Gene Killian (View Comment):
    And maybe that’s the point. As much as we want judges to stay with the original intent, and as much as we know that the drafters of Title VII weren’t thinking about transgender people in 1964, we have to expect that even conservative judges will from time to time show some flexibility in an effort to implement the overarching policy goal of a statute. Very few will be as strict as Scalia was. That’s just the way it is.

    But his ruling doesn’t implement the policy goal of the statute. Everyone knows what that goal was. 

    His logic necessarily prohibits a non transgender employee from being disciplined for using the other gender bathroom. As he wrote,

    “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,”

    So the “action” of using the other bathroom can’t be prohibited, because it wouldn’t be prohibited for the other gender. Surely you must agree this was not the “overarching policy goal” of the law. (In a way, this actually codifies the underlying assumption of transgender legal protections, which in the end must acknowledge that everyone is whatever gender they say they are, with no proof whatsoever other than that that is what they say.)

    Gorsuch is a fool. A well educated and well spoken fool, but a fool. And the liberals on the court are secretly laughing at him. 

     

     

     

     

    • #5
    • June 26, 2020, at 5:27 PM PDT
    • 8 likes
  6. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    Percival (View Comment):

    Anybody who can’t come up with a biological difference between men and women shouldn’t be on the Supreme Court. Anybody who can’t do that probably shouldn’t have a drivers license, either.

    Is that what Gorsuch did? My understanding is that he accepts the definition of sex as understood in 1964.

    • #6
    • June 26, 2020, at 5:27 PM PDT
    • 1 like
  7. Hoyacon Member

    Two noted textualists.

    And, in fact, two noted textualists with Gorsuch’ candlepower.

    • #7
    • June 26, 2020, at 5:28 PM PDT
    • 2 likes
  8. Gene Killian Coolidge

    Bob Wainwright (View Comment):
    So the “action” of using the other bathroom can’t be prohibited, because it wouldn’t be prohibited for the other gender. Surely you must agree this was not the “overarching policy goal” of the law

    Yes, poor use of words by me. I should have written “what he perceives to be the overarching policy goal.”

    • #8
    • June 26, 2020, at 5:30 PM PDT
    • 4 likes
  9. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    Gene Killian (View Comment):

    Here’s an interesting paragraph from the opinion:

    Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.

    Bostock v. Clayton County, No. 17-1618, at *14-15 (June 15, 2020).

    This is interesting to me for two reasons. First, I wholeheartedly agree that all Yankee fans should be fired. (Kidding, kidding.) Second, Gorsuch uses contractions (“didn’t,” “it’s”) several times in his opinion. I’ve been practicing law for a long time, and rarely have I seen that in a published opinion. Times change.

    And maybe that’s the point. As much as we want judges to stay with the original intent, and as much as we know that the drafters of Title VII weren’t thinking about transgender people in 1964, we have to expect that even conservative judges will from time to time show some flexibility in an effort to implement the overarching policy goal of a statute. Very few will be as strict as Scalia was. That’s just the way it is.

     

     

    I think Gorsuch would tell you that he is strictly following the text. It’s just that the text was very broad and clear. So broad that, without changing the meaning of any words, this unintended consequence falls within the statute.

    • #9
    • June 26, 2020, at 5:31 PM PDT
    • 3 likes
  10. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    I will leave having said my piece (and having no desire to discuss, Jim, Jill, Al, or Bob instead of the actual opinion and the reference cases found there).

    • #10
    • June 26, 2020, at 5:33 PM PDT
    • 1 like
  11. Saint Augustine Member

    Ed G. (View Comment):

    I think Gorsuch would tell you that he is strictly following the text. It’s just that the text was very broad and clear. So broad that, without changing the meaning of any words, this unintended consequence falls within the statute.

    I agree.

    Which means there isn’t that much to discuss–other than the logic that gets him to that conclusion.

    • #11
    • June 26, 2020, at 5:35 PM PDT
    • 4 likes
    • This comment has been edited.
  12. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    Original intent. Textualist. Original meaning. Therese are all different I think. Personally, I don’t want judges ruling based on the intent of legislators in writing a law. I want them to judge based on the words written and the meaning of those words at the time. I don’t care about the policy goals in this context. That’s why we conservatives also believe that government, especially federal government, should not step in on local matters, should not be careless in how laws are written, should not overreach, should stick to concrete instead of the esoteric. Unintended consequences isn’t a new term for us.

    I think this is unintended consequences of a flawed (fundamentally flawed?) law in the Civil Rights Act. I’ve still yet to see how Gorsuch changed any 1964 meanings or added words in order to make his reasoning work.

    • #12
    • June 26, 2020, at 5:42 PM PDT
    • 3 likes
  13. Hoyacon Member

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    I think Gorsuch would tell you that he is strictly following the text. It’s just that the text was very broad and clear. So broad that, without changing the meaning of any words, this unintended consequence falls within the statute.

    I agree.

    Which means there is very little to discuss–except the logic that gets him to that conclusion.

    See the link posted above at #13 by two of the leading textualist profs in the country. These are people who are not invested in the result, only in the reasoning. At some point, the analysis by leading conservatives thinkers-and there’s a lot–has to take hold,

    • #13
    • June 26, 2020, at 5:44 PM PDT
    • 3 likes
    • This comment has been edited.
  14. Saint Augustine Member

    Hoyacon (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    I think Gorsuch would tell you that he is strictly following the text. It’s just that the text was very broad and clear. So broad that, without changing the meaning of any words, this unintended consequence falls within the statute.

    I agree.

    Which means there is very little to discuss–except the logic that gets him to that conclusion.

    See the link posted above at #13 by two of the leading textualist profs in the country. These are people who are not invested in the result, only in the reasoning.

    Yeah, I think I looked over that yesterday.

    Someone at NRO’s Bench Memos blog had a nice link to some other good ones.

    • #14
    • June 26, 2020, at 5:47 PM PDT
    • Like
  15. Saint Augustine Member

    Ed G. (View Comment):

    Personally, I don’t want judges ruling based on the intent of legislators in writing a law. I want them to judge based on the words written and the meaning of those words at the time.

    Right on.

    I’ve still yet to see how Gorsuch changed any 1964 meanings or added words in order to make his reasoning work.

    Same here.

    • #15
    • June 26, 2020, at 5:48 PM PDT
    • 1 like
  16. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    Hoyacon (View Comment):

    Two noted textualists.

    And, in fact, two noted textualists with Gorsuch’ candlepower.

    Here’s a snippet from that article:

    Title VII cannot be dissected like a frog in freshman biology. The phrases “discriminate against” and “because of” are closely intertwined. By the 1960s, the phrase discriminate against because of sex had formed a single linguistic unit. The whole conveyed more meaning than the sum of its parts. This concept did not merely refer to blindly treating a man differently than a woman. Rather, this standard made bias or prejudice an essential element of the casual injury.

    I think these authors are reading into Gorsuch. I don’t understand why they think Gorsuch was treating this phrase as referring “to blindly treating a man differently than a woman.” Clearly, to me, there is both bias and prejudice involved in the case. So too in the Phillips case that Gorsuch referenced. There an employer refused applications from women with young children. What is the difference between that and refusing an application from women who sleep with women? In both cases the factor was sex. Philips seems to be an uncontroversial example of a title VII violation. What’s the difference other than an unintended consequence and unwanted outcome?

    • #16
    • June 26, 2020, at 6:15 PM PDT
    • 3 likes
  17. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    Ok, I said I was leaving. I lied….. to myself and therefore to you. Sorry!

    Seriously, I will be logging off soon. I suppose I reserve the right to come back tomorrow or the next day, but I’m really trying to stop obsessing over this.

    • #17
    • June 26, 2020, at 6:24 PM PDT
    • 1 like
  18. Saint Augustine Member

    Ed G. (View Comment):

    Ok, I said I was leaving. I lied….. to myself and therefore to you. Sorry!

    Seriously, I will be logging off soon. I suppose I reserve the right to come back tomorrow or the next day, but I’m really trying to stop obsessing over this.

    Just When I Thought I Was Out GIFs - Get the best GIF on GIPHY

    • #18
    • June 26, 2020, at 6:35 PM PDT
    • 2 likes
  19. Sweezle Member

    I hate that this ruling will destroy women’s sports. 

    • #19
    • June 26, 2020, at 7:02 PM PDT
    • 3 likes
  20. Percival Thatcher
    Percival Joined in the first year of Ricochet Ricochet Charter Member

    Sweezle (View Comment):

    I hate that this ruling will destroy women’s sports.

    No it won’t. It’ll just be men winning all the competitions.

    • #20
    • June 26, 2020, at 7:08 PM PDT
    • 4 likes
  21. Hoyacon Member

    Ed G. (View Comment):

    Hoyacon (View Comment):

    Two noted textualists.

    And, in fact, two noted textualists with Gorsuch’ candlepower.

    Here’s a snippet from that article:

    Title VII cannot be dissected like a frog in freshman biology. The phrases “discriminate against” and “because of” are closely intertwined. By the 1960s, the phrase discriminate against because of sex had formed a single linguistic unit. The whole conveyed more meaning than the sum of its parts. This concept did not merely refer to blindly treating a man differently than a woman. Rather, this standard made bias or prejudice an essential element of the casual injury.

    I think these authors are reading into Gorsuch. I don’t understand why they think Gorsuch was treating this phrase as referring “to blindly treating a man differently than a woman.” Clearly, to me, there is both bias and prejudice involved in the case. So too in the Phillips case that Gorsuch referenced. There an employer refused applications from women with young children. What is the difference between that and refusing an application from women who sleep with women? In both cases the factor was sex. Philips seems to be an uncontroversial example of a title VII violation. What’s the difference other than an unintended consequence and unwanted outcome?

    At some point we have to realize that writers with as much understanding as Gorsuch are worth listening to. Alito shredded Gorsuch. Fine. Now we see repeated discussions by others of considerable intellectual weight in opposition to Gorsuch. These are people of knowledge, and of sufficient objectivity to not have a vested interest in the outcome. I have yet to see a wholehearted defense of Gorsuch by textualists on the right. I have seen numerous criticisms by those with greater knowledge than me. I can live with that. At some point this becomes a reasoned assessment of opinions 0f those with true expertise.

    • #21
    • June 26, 2020, at 7:15 PM PDT
    • 3 likes
    • This comment has been edited.
  22. Ray Gunner Coolidge

    Here’s what got me about Gorsuch’s opinion: If Title VII requires courts to stretch the word “sex” to include “trans-sexual,” then what is to prevent a court from stretching the other protected categories on the list to include their “trans” iterations: e.g. trans-racial, trans-color, trans-religious, etc.?

    For example, if a white employee one day wishes to present herself to the world as Latina, and she applies a darker-skin tone make up to appear Latina, and her employer promptly fires her for showing up to work in “brown face,” it seems to me, under Gorsuch’s reasoning, the white employee would have a Title VII claim against her employer for having been fired for doing something (presenting herself as Latina) that would not get a Latina employee fired. Under Gorsuch’s logic, discrimination for presenting herself as a different race than the race to which she was assigned to her at birth is discrimination “because of race” and therefore prohibited under Title VII. 

    Am I missing something? 

    • #22
    • June 26, 2020, at 7:24 PM PDT
    • 8 likes
  23. Old Buckeye Member

    What I’m gleaning from the ruling is that more and more lazy, incompetent employees will be guaranteed employment because they’ll apply the new rules to their situation, regardless of their lack of contribution to the employer’s business.

    • #23
    • June 27, 2020, at 5:00 AM PDT
    • 5 likes
  24. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    Hoyacon (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    I think Gorsuch would tell you that he is strictly following the text. It’s just that the text was very broad and clear. So broad that, without changing the meaning of any words, this unintended consequence falls within the statute.

    I agree.

    Which means there is very little to discuss–except the logic that gets him to that conclusion.

    See the link posted above at #13 by two of the leading textualist profs in the country. These are people who are not invested in the result, only in the reasoning. At some point, the analysis by leading conservatives thinkers-and there’s a lot–has to take hold,

    I’m not so sure they’re not invested in the result. I admit that there are smarter people with expertise than me. However, this also isn’t magic. I can read and reason too. Gorsuch’s reasoning relies on one thing, and so far I’ve not seen even expert critics address it directly. If a woman is fired for trait or action X but a man would not be fired for that same trait or action, then that is a violation of title VII. Uncontroversial cases like Philips are in that pattern. So why not this one? That’s really what someone needs to show; that’s what I was first looking for but when I didn’t find it I began to grow suspicious that the implications of the decision were guiding the assessment if it.

    • #24
    • June 27, 2020, at 5:42 AM PDT
    • 1 like
    • This comment has been edited.
  25. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    Ray Gunner (View Comment):
    Here’s what got me about Gorsuch’s opinion: If Title VII requires courts to stretch the word “sex” to include “trans-sexual,”

    I think Gorsuch would say you have to stretch to not include it. He says the law was written broadly and clearly. I dont think he’s stretching the word. Sex means what it did in 1964.

    • #25
    • June 27, 2020, at 5:50 AM PDT
    • 3 likes
    • This comment has been edited.
  26. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    Ray Gunner (View Comment):

    For example, if a white employee one day wishes to present herself to the world as Latina, and she applies a darker-skin tone make up to appear Latina, and her employer promptly fires her for showing up to work in “brown face,” it seems to me, under Gorsuch’s reasoning, the white employee would have a Title VII claim against her employer for having been fired for doing something (presenting herself as Latina) that would not get a Latina employee fired. Under Gorsuch’s logic, discrimination for presenting herself as a different race than the race to which she was assigned to her at birth is discrimination “because of race” and therefore prohibited under Title VII. 

    Am I missing something?

    Maybe, but wouldn’t a black employee be fired for white face? Seems to me that this wouldn’t vary based on race. Maybe in practice there could be uneven application by specific managers, but I doubt any HR department in today’s America would condone any kind of Other Face. To the extent that it’s a one way policy, yes that is absolutely discrimination based on race.

    • #26
    • June 27, 2020, at 5:59 AM PDT
    • 2 likes
    • This comment has been edited.
  27. Ed G. Member
    Ed G. Joined in the first year of Ricochet Ricochet Charter Member

    The other part I have found interesting is the conservative (almost) defense of the CRA. I always thought conservative thought found it to be an inherently flawed law at best and unconstitutional at worst. Why is it a shock that it continues to cause problems and drive craziness in HR? It’s been doing that since it was born. 

    • #27
    • June 27, 2020, at 6:13 AM PDT
    • 2 likes
  28. Miffed White Male Member
    Miffed White Male Joined in the first year of Ricochet Ricochet Charter Member

    Ed G. (View Comment):
    I think these authors are reading into Gorsuch. I don’t understand why they think Gorsuch was treating this phrase as referring “to blindly treating a man differently than a woman.” Clearly, to me, there is both bias and prejudice involved in the case. So too in the Phillips case that Gorsuch referenced. There an employer refused applications from women with young children. What is the difference between that and refusing an application from women who sleep with women? In both cases the factor was sex. Philips seems to be an uncontroversial example of a title VII violation. What’s the difference other than an unintended consequence and unwanted outcome?

    Here’s what I don’t get about the example I see thrown around – Why is “sleeping with a woman” the operative condition that is protected, rather than “sleeping with a member of the same sex”?

    If you’d fire a man for sleeping with a man, you can fire a woman for sleeping with a woman.

    If you wouldn’t fire a man for sleeping with a woman, you wouldn’t fire a woman for sleeping with a man.

    Unlawful discrimination would only come into play if you fire the lesbians but keep the gay guys (or vice versa).

     

     

    • #28
    • June 27, 2020, at 6:30 AM PDT
    • 7 likes
  29. Percival Thatcher
    Percival Joined in the first year of Ricochet Ricochet Charter Member

    Ed G. (View Comment):

    Ray Gunner (View Comment):
    Here’s what got me about Gorsuch’s opinion: If Title VII requires courts to stretch the word “sex” to include “trans-sexual,”

    I think Gorsuch would say you have to stretch to not include it. He says the law was written broadly and clearly. I dont think he’s stretching the word. Sex means what it did in 1964.

    In 1964, transexuality was classified as a mental aberration; one that I neither suffer from nor am required to participate in. 

    • #29
    • June 27, 2020, at 8:05 AM PDT
    • 2 likes
  30. Gene Killian Coolidge

    Gorsuch seems to be saying that the statute, on its face, clearly precludes discrimination based on sex. He’s saying that LGBTQ is a sexual characteristic, and therefore is unavoidably included within the definition of “sex.” The tension is that strict constructionists argue that the drafters of Title VII were not thinking about LGBTQ at the time, obviously. But I think that a judge will only delve into legislative history and intent when he or she believes that the text of the statute is ambiguous. Here, Gorsuch is saying that the statute is clear. Agree or not, that’s the logic.

    • #30
    • June 27, 2020, at 8:25 AM PDT
    • 3 likes