How logic fuels Neil Gorsuch’s Supreme Court opinion protecting gays and transgender people

The Civil Rights Act of 1964 prohibits discrimination based on sex. But in a 6-3 Supreme Court opinion published yesterday, Justice Neil Gorsuch, usually a reliable conservative, joined Chief Justice John Roberts and four liberal justices to show that the law also prohibits discrimination against gay and transgender people. Let’s look at parts of his opinion to see how the logic got him to this point.

What we want from our Supreme Court, ideally, is dispassionate logic that follows the law and the Constitution. That’s its job. There are, of course, multiple points of view on what is logical, which is why it takes a Supreme Court to sort them out.

In this case, a conservative justice published an opinion that liberals will embrace. How did he get there?

Key points in the Gorsuch opinion

How did Gorsuch get from “no discrimination based on sex” to “no discrimination against homosexuals or transgender people”? Because, as he wrote, any discrimination against these folks starts with discriminating based on sex. He has not created a new set of protected classes not contemplated in the 1964 law. He has shown that this discrimination is a subclass of sex discrimination, which is prohibited.

Here’s some of the opinion:

[In the Civil Rights Act], in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. . . .

This statute works to protect individuals of both sexes from discrimination, and does so equally. 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.

Logical points:

  • Protecting both sexes (as a group) equally is no defense.
  • Firing a person for not adhering to a particular gender role implies that there is a correct behavior for that gender role.
  • Discriminating based on that “correct” gender role means that a person of that gender must behave a certain way, presumably differently from a person of a different gender, and thus this is sex discrimination.
  • Therefore discriminating based on “correct” gender role is sex discrimination, and is illegal under Title VII.

This logic is even clearer in this passage:

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. . . 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.

Clarity: You can’t discriminate against a homosexual or transgender person without first discriminating based on sex.

Notice that this opinion has not extended the law to classes not explicitly included. Gorsuch has shown that the class that was included — sex or gender — is sufficient to establish discrimination against the new classes — homosexual and transgender people.

The Gorsuch doctrine

Gorsuch’s opinion is fascinating to me, because it implies that discrimination based, not just on gender, but on traditional gender roles, is against the law.

Start with sex discrimination. This is why there are male flight attendants and women firefighters. If you can do the job, you should be able to get the job and keep the job, regardless of gender.

Could an employer insist that all women they employ be blondes? If I’m reading this opinion right, no, because that would be defining what a woman in the job would have to be, which is discriminating on the basis of sex.

Could an employer insist that all women they employ be beautiful — and reject, for example, women with asymmetrical faces or shaved heads, if they don’t perceive those to be beautiful? According to Gorsuch, no.

This is a triumph, not just for gay and transgender Americans, but for everybody who doesn’t conform to outdated ideas of gender. It says you can be a man any way you like, and a woman any way you like, and no employer can discriminate based on who you are and how you express that gender.

Gender “norms” are a construct. Every day I am expanding my idea of who people are, and of how gender relates to that. Now Neil Gorsuch and Chief Justice John Roberts have joined me. And that’s one of the nicest things I can say about my government right now. I feel like somebody is listening.

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  1. When this SCOTUS decision was announced yesterday, it was one of the first rays of hope I’d had from this government for about 3.5 years. I’m not homosexual myself, so I can only imagine by proxy the worry that my friends and coworkers who are must have felt up to this point. How glorious it must feel today to be able to be involved in a work environment that can no longer legally exclude them on a whim, at least not without repercussions for doing so.

  2. If we could flip our approach to discrimination as I have proposed, we end up exactly where we need to be.

    To better your quote: If you can do the job, you should be able to get the job and keep the job, regardless of other factors.

    Interestingly this allows discrimination IF it is necessary to get the job done, that is, if it matters. For example, you might limit your casting of a Rev. Dr. Martin Luther King, Jr. biographic play to a black man under 40 years old, if you so desired, thereby allowing discrimination on the basis of color, sex, and age.

    And interestingly, I cannot think of a single example where sexual orientation would matter. The most extreme example I could think of would be a “porn” role, where one would have to convincingly interact with someone of a certain sex and other characteristics. Can you do the job? Yes, then you are hired. No, sorry.

    As a person who believes Diversity Drives Discovery and holds that diversity is defined multi-factorially, I wonder about the impact on preference programs.

    I also wonder if the decision could have been made without referring to Title VII and instead towards the Constitution, which would be a more concrete foundation.

    What a major step forward with this decision, although I wish it was unnecessary and I wish we would shift our thinking to my proposal, which eliminates the repeated question of can we discriminated for this or that reason.

    Josh, I really appreciate your analysis, it was the only one I saw that showed how the Court reached its conclusion. That logic.

    Thanks, Norman

    1. You raise some interesting ideas, Norman!

      I agree there is sometimes a need for specific gender or biology characteristics to successfully fulfill a job description. A surrogate mother needs a functioning womb and general good health to support a pregnancy.

      In contrast a carpenter needs enough physical strength in hands, arms, and legs to do the sawing, hammering, and overall construction; that’s a matter of reasonable strength tests and can be fulfilled by any gender. Being a manager in an office of nearly any above-board business? I hope a specific set of genitalia isn’t necessary to fulfill the physical duties of the job.

      Regarding laws applied to adults: the drive toward “we need a law about this” typically comes from at least 4 questions:

      Item 1) Is the person or group with {characteristic} of sound mind and mature in outlook {i.e., functionally adult and therefore entitled to the privileges of adulthood including making decisions for oneself}?

      Item 2) Is that person/group deserving of the same {right} as the dominant group?

      Item 3) If the person/group is granted {right}, does it strip away the same existing right for the dominant group?

      Item 4) Are the existing constitution/laws/attitudes already protecting the {right} of the person/group under discussion, as seen from the point of view of the person/group it claims to protect?

      In regards to the LGBTQ category of people and rulings in the last 10 years, the internet abounds with articles and videos against Item 1 and Item 2 from a wide variety of layperson, elected/government, and religious individuals and groups.

      Regarding Item 3, it’s telling how often the answer is a resounding NO. False claims to this item or claims of destruction of society/humanity/natural order/the planet are typically used to stir up fear regarding changing the status quo.

      As for Item 4, talk frankly with a person from the LGBTQ community and they will nearly certainly be able to describe many instances of subtle or overt discrimination.

      Should we as a society simply be more patient? I don’t think waiting longer would bring about the equal protection the LGBTQ community seeks.

      The original form of the Constitution has been in effect for 231 years and has been amended 27 times. If it was a matter of treating people as competent equals simply because the original Constitution and its Amendments proclaim it, this absurdity of withholding equal protection would have died out long before 2020. Hence the need for laws describing in detail the groups and rights that should be protected. Ultimately we rely on the US Supreme Court to make those nuanced decisions. I think this latest ruling is an example of how an additional law needs to be drawn up because there was a clash between the intent of current law and the only-if-you-force-me attitude of those who were supposed to follow it.

      I’m heartened that you aim to “do the right thing” by treating diverse people as competent equals by default, Norman.

      Unfortunately there are many who would do so only when required by a specific law, and then only when forced by pain of punishment.

      1. Right reply, Lynn.

        The problem, and it is huge, is that we cannot define all the nuances, which do evolve, so we are stuck in a do what one thinks is right and courts sort out the decisions and then Congress/Legislatures tries/try again loop.

        In safety, we often chase the “don’t’s” and we never get even close to how to do it safely, much less how to do it right. We waste so much time adjusting our list for new, innovative, I-never-thought-of-that, gee,-that’s-the-first-time-anyone’s-done-that, etc. ways people do things unsafely, when what we really want is for people to do it right. So, to combat that, I decided to catalog what we need to have people do things right. It’s easier to define and easier to see when things go off the track. My approach is the best way (and is durable) and I hope it will be the way of the world.

        I would be in favor of cleaning up the Constitution (including making the rights explicit), but that is a risky affair for almost everyone.

        Some of the problems come from the thought by many and misguided by all of those otherwise fine folks that government needs/should/can be involved in decisions of adults. I take your item 1 to its logical conclusion in so many issues–why does the government have a dog in this fight–is it sanctioned by the Constitution? (most actions are not) and does the government involvement/interference make things better (most of the time, no). So, I was against “gay” marriage, not because “gays” or anyone should not get married (who cares?!), but I was/am against ALL marriages in which the state/government thinks it has a stake. It clearly does not, at all. But I understand that the government and largely the world wants to claim marriage deserves more rights, breaking Item 3. Of course, it does not, except nearly everyone (on both or all sides of “gay” marriage) wants it to and acts to make it so.

        I disagree on the specific law pain; currently, it is painful to cross the Constitution and there is no specific law in this case, for example. That was one of the arguments by anti-X people; why did not Congress write the specifics. Even if you love the Court’s reasoning in this case (and I do), why not write what you want…