Justice Gorsuch Becomes an Unlikely Pro-GLBT Swing Vote in Bostock v. Clayton County Expanding Title VII Protection – The Supreme Court Gets It that Sex Discrimination Includes Sexual Orientation and Gender Identity.

I think that conceptually this is the best way to view sexual orientation as an aspect of sex and gender. Here are some quotes from the opinion that help illustrate how Justice Gorsuch gets it right.

Opinion:
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

Oral Argument:
https://www.supremecourt.gov/oral_arguments/audio/2019/17-1618

Predecessor cases:
An individual employee’s sex is “not relevant to the selection, evaluation, or
compensation of employees.” Price Waterhouse v. Hopkins,
490 U. S. 228, 239 (1989) (plurality opinion).
Oncale https://cdn.loc.gov/service/ll/usrep/usrep523/usrep523075/usrep523075.pdf

Quotes:
“So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles It.” slip op. At 9.

“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.” Slip op. At 9-10.

“An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.” Slip op. At 17.

“By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.” Slip op. At 18-19.

“We agree that homosexuality and transgender status are distinct concepts from
sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Slip op. At 19.

“When we apply the simple test to Mr. Bostock—asking whether Mr. Bostock, a man attracted to
other men, would have been fired had he been a woman—we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he
were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred.” Slip op. At 20-21.

“Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside.” Slip op at 21.

“But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as
interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.” Slip. op at 21.

“But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” Slip op. At 33.

Other Federal Laws Potentially Affected:
Equal Pay Act of 1963,
Federal Fair Housing Act of 1968,
Title IX-Education Amendments of 1972,
Equal Credit Opportunity Act of 1974,
Patient Protection and Affordable Care Act of 2010

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