I dunnow, my non-law-school self is a little questioning?
Transgender status might be able to make this stick (with arguments abounding from people, undoubtedly)--but that's because it's a 'sex' characteristic at play, not a behavioral one. The trait of sexual orientation is unlisted in the legislation, and actions--even those tied to the different traits--are not grounds for protection. Gorsuch is conflating, in the case of homosexuality, a sexual orientation with a sex status (and the former was VERY much was not on the authors intentions at the time).
His analogies seem to ignore or skip over actually-comparable situations (a homosexual male and homosexual female) in order to manufacture a different treatment based on sex (a homosexual male fired where a hetero female is not) where the different treatment is based (immorally) on sexual orientation--which does not have a protection in the legal language carved out for it.
A positive result, but it's very much something that should've been a congressional update to the language of Title VII that inserted language. Not what looks (to my ignorant ass) like Court-created discovery of something not really present in the law.
Read his opinion, he handles this very well. The whole opinion lives and breathes textualism, unlike Alito's. The basic argument is that discriminating based on sexual orientation necessitates a discrimination based on sex as defined in 1964.
First, using plain language, he explains what discrimination based on sex legally means in law, concluding that:
If the employer intentionally relies in part on an employee's sex when deciding to discharge the employee - put differently, if changing the employee's sex would have yielded a different choice by the employer - a statutory violation has occurred.
Then, he explains why discrimination based on sexual orientation necessarily implies discrimination based on sex:
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
Here's a response to a few specific objections:
(and the former was VERY much was not on the authors intentions at the time).
A couple of things. First, Gorsuch is a textualist, and thus doesn't give a shit what the authors intended, just what the words commonly meant at the time. Second, Gorsuch notes that the author didn't even intend for the bill to pass. Sex was added to the list as a poison pill in order to try to sink it. Third, Gorsuch says that the text is clear here, so there is no reason to seek guidance from the legislative record.
Gorsuch is conflating, in the case of homosexuality, a sexual orientation with a sex status
He specifically avoids doing this. He just finds that discrimination on sexual orientation implies discrimination based on sex. Just like discrimination based on being a mother is discrimination based on sex. He used the Defendant's definition of sex, even.
His analogies seem to ignore or skip over actually-comparable situations (a homosexual male and homosexual female) in order to manufacture a different treatment based on sex (a homosexual male fired where a hetero female is not) where the different treatment is based (immorally) on sexual orientation--which does not have a protection in the legal language carved out for it.
I'm not seeing how you are dismissing this comparison of a man who likes men versus a woman who likes men. The only difference between the two is their sex. To quote the opinion: "If changing the employee's sex would have yielded a different choice by the employer - a statutory violation has occurred." Clearly, in such a situation, this is true. He does it even more specifically by talking about an employee introducing their wife, Susan, and the employer firing any LGBT employees. The firing decision at that point depends entirely on the employee's sex, even as understood in 1964.
To conclude, I am enormously happy Gorsuch wrote this. It's so much better than the
Obergfell v Hodges case.
www.vox.com
www.motherjones.com
