Monday, June 15, 2020

"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.”

That was Justice Gorsuch for a 6 Justice majority today (including Chief Justice Roberts) in Bostock v. Clayton County.  This was another slap down for the 11th Circuit, which has tilted WAY too far to the right.

Justice Kavanaugh was completely wrong in his dissent, but at least he wasn’t a jerk about it — unlike Alito.  Look at the difference in tone:

Kavanaugh at least acknowledged “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

Alito, on the other hand, said Gorsuch’s opinion “is virtually certain to have far-reaching consequences” which will “threaten freedom of religion, freedom of speech, and personal privacy and safety.” He said that Gorsuch was “irresponsible,” because his opinion “greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution.”

Meantime, the 11th Circuit has a couple of 2-1 decisions. First is a reversal of the Metro-West injunction related to corona. Newsom and Martin square off, with a visiting district judge joining Newsom.

The second is a reversal of a suppression order, with Branch and Marcus in the majority. Kudos to Judge Ungaro for dissenting:
While the evidence is that the three men and Mrs. Yarborough were secured near the porch of the house and, as emphasized by the majority, Officer Monroy’s re-entry was swift and his search was cursory, the only conclusion I can reach from the record is that Officer Monroy made the sweep, no doubt for officer safety, because the arrest scene was proximate to the house and he had a concern that the house, like any structure, could have concealed the presence of a dangerous individual. In other words, Officer Monroy conducted the sweep based on speculation, rather than articulable facts.


Anonymous said...

And there you see the difference between a trial (real) judge who knows cops lie and make up pretextual reasons all the time, and two who live in la land and think they never do.

But good on them for giving any cop free reign to text themselves an "anonymous" and amorphous tip so that they can arrest a guy in front of his house and then search the whole damn thing without a warrant.

Anonymous said...

The Bostock majority got it wrong and did injury to the constitution and the rule of law. They twisted themselves into knots to justify a good public policy result that is not found anywhere in the law.

Ask me to vote on a referendum to ban sexual orientation discrimination, and I'd vote for it. Ask me to vote for candidates who would pass laws banning sexual orientation discrimination, and I'd vote for them too. But there is no such federal law today (or at least not before the majority legislated it from the bench).

The majority gave the case away with this: "We agree that homosexuality and transgender status are distinct concepts from sex." See page 19 of the majority opinion. That's it. Full stop. Go no further.

Kavanaugh sums it up pretty well:

"Like many cases in this Court, this case boils down to one fundamental question: Who decides? . . .

Title VII makes it unlawful for employers to discriminate because of 'race, color, religion, sex, or national origin.' As enacted in 1964, Title VII did not prohibit other forms of employment discrimination, such as age discrimination, disability discrimination, or sexual orientation discrimination.

Over time, Congress has enacted new employment discrimination laws . . .

To prohibit age discrimination and disability discrimination, this Court did not unilaterally rewrite or update the law. Rather, Congress and the President enacted new legislation, as prescribed by the Constitution’s separation of powers.

For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation. But as noted above, although Congress has come close, it has not yet shouldered a bill over the legislative finish line.

In the face of the unsuccessful legislative efforts (so far)to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.

If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty."

Anonymous said...

Completely disagree. Gursuch's logic based on the text was simple and correct.

1) You have two employees, a man and a woman. They each marry a woman.
If you fire the woman employee but not the man employee for the same action, you are discriminating on the basis of sex.

2) You have two employees, they both come to work in a two piece suit, button down shirt, tie and penny loafers. They both have flat top haircuts, go by the name of Bob, and prefer the pronouns he, him and his. One was born with male genitalia, one with female genitalia. If you fire the person born with the female genitalia for the same actions, you are discriminating on the basis of sex.

That is the law. Those two individuals deserve and have the protection of the law. And it does not matter what you would vote for.

Anonymous said...

Judge Martin makes quite a few very specific factual assertions in the opening paragraph of her dissent (without citation) that are, uh, debatable to say the least.

Anonymous said...

@11:19 from 926:

I see what you are saying. These questions, and so many others, are tough and the answers aren't always clear. But the Gorsuch opinion is fundamentally and logically flawed.

Gorsuch said: "We agree that homosexuality and transgender status are distinct concepts from sex." See page 19 of the majority opinion.

Having conceded that sexual orientation is a distinct concept from sex, the majority departed from the plain text in holding that, not withstanding that sexual orientation is distinct from sex, that discriminating based on sexual orientation is still discriminating based on sex.

It just doesn't square.

Anonymous said...


But the point is that it impossible to discriminate on the basis of sexual orientation without that discrimination also being because of sex. Bob marries John. Bob gets fired. Mary marries John (a different John). Mary doesn’t get fired. All other things being equal (as was assumed by the parties and the court for purposes of the case), Bob was fired because, as a man, he married another man. Gorsuch’s example with the employer who has a policy of firing all women who are Yankees fans, but allowing men who are Yankees fans to stay on is right on target. That of course would be discrimination on the basis of sex. So too with a policy of firing all men who are attracted to men, but allowing women who are attracted to men to stay on.

Anonymous said...

So it is what you are built to do vs. what you want to do?

Anonymous said...


At the office, bathroom A is marked "men's" and bathroom B is marked "women's."

Bob, who was born with and has a penis, goes into bathroom B, urinates, and leaves. He is fired.

Nancy, who is a member of the population of "people who menstruate" also goes into Bathroom B, urinates, and leaves. She is not fired.

Was that sexual discrimination? Do you REALLY believe that makes sense? Do you REALLY believe that congress intended to protect Bob's conduct when they wrote the statute?

If you answered yes to the first two questions, what you are advocating is a radical restructuring of our society based on a nearly 60 year old law that was never intended to do what you suggest.

The question of sex and sexual orientation is not as easy as race (and look at how much trouble we have with that one!). Race is an absolute fiction. The color of a man's skin is of no more significance than the color of his eyes. But men and women ARE different (if you have trouble with this concept, just ask a pregnant woman if she is the same as her husband). Men and women have long standing historical gender roles in our society. Those gender roles evolved because men and women are different. It is not the role of the courts to cast aside those long standing gender roles. Instead, that is the role of the people through amendment to the constitution or by electing representatives to Congress who will enact new law.

Anonymous said...

@ 8:24

I know a few Yankees fans who would argue that is just as immutable a trait as sex... (I jest). But Title VII does protect against discrimination on the basis of one other trait that is arguably a matter of choice: religion.


The bathroom question was expressly not before the court and Gorsuch et al. did not purport to answer that question absent a record and adversarial briefing on the question. And Title VII does not protect "conduct" as you put it. Race, color, sex, and discrimination because of those traits is what it prohibits. Did congress intend to prohibit male-on-male sexual harassment in 1964? Probably not. But they wrote the statute in such a way as to provide for broad prohibitions, though they were certainly capable of tailoring those prohibitions more narrowly. Just as they are free now to do if they feel the court interpreted the law as written to do more than they wanted it to do when they wrote it. But, it being unambiguous, congress's intent plays no role in the analysis.

I think a far more interesting question is what Kagan, being the stare decisis hawk that she professes to be, having signed on to this literal textualist analysis, does in the next case in which the result of such analysis does not align with her leanings.

Figg said...

9:17 I guess it depends on how you approach the issue. You repeatedly refer to intent. The majority ruled on the meaning of the words (not the intention of the congress that enacted it measured by anything other than the words), and the concept of but-for causation. If you want to hang your hat on what the legislature had in MIND when it enacted the law, you're not just disagreeing with the majority but with how the approach the issue in the first place. Which would be fine, of course, if that's how you want to look at it.

And by the way, in the example you give, yes, that's sex discrimination, pretty clearly. And it definitely makes sense. Bob the penis-haver is fired for the identical activity tolerated in Nancy the menstruater. I challenge you explain how that is not sex discrimination.

Anonymous said...


It would be an absurd result to call the bathroom example sex discrimination. No way, no how, that the purpose of the act (passed in 1964?) was to create a scenario in which the bathroom issue became sex discrimination.

"There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act." United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543(1940)

"It is true that HN8 interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available." Griffin v. Oceanic Contractors, 458 U.S. 564, 575 (1982).

“[A]bsurd results are to be avoided.” United States v. Wilson, 503 U.S. 329, 334 (1992).

Figg said...

12:59 I think it is incumbent upon you to explain why it would be an absurd result. I don't see anything absurd about it.

Anonymous said...

1259 here @ Figg. I did. And I will again: No way, no how, that the purpose of the act (passed in 1964?) was to create a scenario in which the bathroom issue became sex discrimination.

An "absurd result" is one that "shock[s] the general moral or common sense." Crooks v. Harrelson, 282 U.S. 55, 60, 51 S. Ct. 49, 50 (1930) (still the standard today).

Even today (forget about 1960s when this was passed), a workplace bathroom marked "women's" remains no place for a man. A judicial interpretation of discrimination based on sex that would hold otherwise is. most certainly, shocking to the general moral or common sense and would be an absurd result.

Figg said...

2:09 Perhaps we have come simply to a difference in values or sensibilities, but I'll address a few things. One, I think with the remark about purpose you are blending concepts. Regardless of purpose, an unintended application (many of which the Bostock majority opinion cites) could lead to an un-absurd result or an absurd result. So I don't think purpose has anything to do with with the absurdity question.

So maybe it just comes down to a value judgment. You say that even today, a workplace bathroom marked "women's" remains no place for a man, by which I assume you mean a person with a penis, and that a holding protecting a man against discrimination for using a workplace bathroom marked "women's" would shock the general moral or common sense. I disagree. But I believe my disagreement comes down to likely unbridgeable differences between what we mean when we say man or woman, including whether those terms can include "transgender man" or "transgender woman," and the imagined horribles that flow from protecting such people from discrimination, even in the bathroom.

I'll leave off with some questions to ponder, both you and I. Who decides whether something shocks the general moral or common sense? Judges? How do they measure it? By their own personal sense of the general moral or common sense? That doesn't seem right. Perhaps by polls? But if so, how much of the population would need to say they're fine with something for a judge to say it no longer shocks the general moral or common sense and is therefore not an absurd result?

On the subject of transgender persons in bathrooms, I think you'll find public opinion, as measured by polls, is increasingly comfortable with the notion, with recent polls stating about half if not a bit more than half of Americans favor protections for transgender persons, even their right to use bathrooms aligning with their gender identity. Is 51% enough? 52? Is there anything you could learn about public opinion that would change your mind as to whether it shocks the general moral or common sense? Or would you never change your mind because your own personal moral or common sense is shocked by it? And if the latter, is your qualm really with the legal reasoning? Or is it with the result, which shocks you.