Legal/scotus thread

[striker42]

Title VII was passed in 1964. The issue of transgender workers was not on anyone's radar. Each generation of judges has to confront the issue of how to interpret statutes whose authors never contemplated certain things.

The thing is, as a Federal Court judge, Gorsuch rejected what you just said. He famously strictly interpreted a statute to say a truck driver who abandoned his load in bad weather as he was in fear for his life was not protected by statute. He was known for being a textualist.

It really makes me wonder if Gorsuch might be starting a transformation into a less constrained judge. It happens on the SCOTUS from time to time. This is just so far outside his history as a judge.

[nsacpi]

The thing is, as a Federal Court judge, Gorsuch rejected what you just said. He famously strictly interpreted a statute to say a truck driver who abandoned his load in bad weather as he was in fear for his life was not protected by statute. He was known for being a textualist.

It really makes me wonder if Gorsuch might be starting a transformation into a less constrained judge. It happens on the SCOTUS from time to time. This is just so far outside his history as a judge.

I added a bit more to the post you quoted. I think technically it is hard to avoid the conclusion that the employees are being made to do certain things (dress code) based on their sex. And the remedy is simple. Gender neutral dress codes.

[57Brave]

BREAKING: The Supreme Court just declined to hear 10 Second Amendment cases, leaving in place restrictions on assault weapons, concealed carry licensing, and other lifesaving gun laws nationwide.

This is a win for public safety—and a loss for the NRA.


https://thehill.com/regulation/court...ce-protections

[striker42]

BREAKING: The Supreme Court just declined to hear 10 Second Amendment cases, leaving in place restrictions on assault weapons, concealed carry licensing, and other lifesaving gun laws nationwide.

This is a win for public safety—and a loss for the NRA.


https://thehill.com/regulation/court...ce-protections

Not much appetite at the court for second amendment cases. The court also bypassed qualified immunity cases. They might be waiting to see if Congress or the States do anything.

[cajunrevenge]

If they wont hear QI in the case of the cop shooting a 10 year old innocent bystander in an attempt to murder a dog then I doubt they ever would. If you would shoot a gun twice at a non threatening dog not once.... but twice as he waited until the dog ran away and then tried again with multiple kids lying next to you then you shouldn't be a ****ing man much less a cop.

[striker42]

I'll be interested to see what consequences there are from the discrimination case toady. The implications go way, way beyond sexual orientation and gender identity. This decision means if the employment decision even tangentially touches ANY protected class, it's a violation of Title VII. But it doesn't stop there. There's no reason why the logic from this case wouldn't be applied to every other statute regarding discrimination. So protections in housing, education, etc all just got massively expanded. This could very well lead to a bunch of unintended consequences.

I really can't impress upon people enough how broad this decision is. I think people see it as just another step in gay rights when it goes WAAAAAAY beyond that.

[nsacpi]

This could very well lead to a bunch of unintended consequences.

I'm guessing a landlord would no longer be able to discriminate against gay or trans tenants.

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968) introduced meaningful federal enforcement mechanisms. It outlaws:

Refusal to sell or rent a dwelling to any person because of race, color, disability, religion, sex, familial status, or national origin.

[nsacpi]

It seems to me based on all these laws you can't discriminate against a person who dresses as a man based upon that person's biological sex. You would have to do all sorts of contortions for that not to be discrimination based on sex. A textualist approach yields that result.

[nsacpi]

After today’s decision,” Justice Alito wrote, “plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.”

scary times

[nsacpi]

Justice Brett M. Kavanaugh, Mr. Trump's other appointment to the court, issued a separate dissent making a point about statutory interpretation. “Courts must follow ordinary meaning, not literal meaning,” he wrote, adding that the ordinary meaning of “because of sex” does not cover discrimination based on sexual orientation or gender identity.

who is being the textualist here

[nsacpi]

“Seneca Falls was not Stonewall,” he wrote. “The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

As a practical matter, I think you have to go through a lot of contortions to be able say a man may not act or dress a certain way but a woman can. That is almost surely sex discrimination.

[57Brave]

what about cakes and public restrooms ?

asking for a friend

[striker42]

Justice Brett M. Kavanaugh, Mr. Trump's other appointment to the court, issued a separate dissent making a point about statutory interpretation. “Courts must follow ordinary meaning, not literal meaning,” he wrote, adding that the ordinary meaning of “because of sex” does not cover discrimination based on sexual orientation or gender identity.

who is being the textualist here

There is a difference between textualism and originalism. Often they overlap as originalists often look to the text to try to figure out what was meant 200+ years ago. However, this law was passed 50 years ago so there's a better idea of what Congress actually intended.

No one really argued that Congress intended Title VII to cover gender identity and sexual orientation. Gorsuch pretty much said he didn't care and dove into a textualist argument.

There will be side effects though. The flaw of a purely textualist approach is that lawyers are very clever and twisting language is a big part of their business. Clever lawyers will find ways to twist this.

[striker42]

Gorsuch's brand of pure textualism is pretty much nonsense. It makes the law mechanical and strips thought from it. With originalism you're trying to find the original intent behind the law and give it effect. On the other end you have more emphasis on policy considerations and making the law applicable to today. Either way is better than pure textualism because you're giving the law the intent of humans (either those that wrote it or those interpreting it). Textualism can lead to absolutely crazy results.

That's why I'm warning people about this decision. If Ginsburg has written it I think it would have focused far more on the specific plight of gays and transgenders and in doing so probably avoided some of the way this case could be twisted. If Alito had written it, you'd have courts determining what Congress intended to protect when it passed Title VII. Gorsuch's reasoning could lead to some crazy results.

[striker42]

Gorsuch's brand of pure textualism is pretty much nonsense. It makes the law mechanical and strips thought from it. With originalism you're trying to find the original intent behind the law and give it effect. On the other end you have more emphasis on policy considerations and making the law applicable to today. Either way is better than pure textualism because you're giving the law the intent of humans (either those that wrote it or those interpreting it). Textualism can lead to absolutely crazy results.

That's why I'm warning people about this decision. If Ginsburg has written it I think it would have focused far more on the specific plight of gays and transgenders and in doing so probably avoided some of the way this case could be twisted. If Alito had written it, you'd have courts determining what Congress intended to protect when it passed Title VII. Gorsuch's reasoning could lead to some crazy results.

I say this but Gorsuch apparently wrote a Time Magazine piece glorifying Originalism in interpreting the constitution. This was a really weird decision.

[nsacpi]

There is a difference between textualism and originalism. Often they overlap as originalists often look to the text to try to figure out what was meant 200+ years ago. However, this law was passed 50 years ago so there's a better idea of what Congress actually intended.

No one really argued that Congress intended Title VII to cover gender identity and sexual orientation. Gorsuch pretty much said he didn't care and dove into a textualist argument.

There will be side effects though. The flaw of a purely textualist approach is that lawyers are very clever and twisting language is a big part of their business. Clever lawyers will find ways to twist this.

that's the thing though...it is a question of which reading requires more twisting and contortions...I think Kavanaugh's requires more twisting than Gorsuch's in this case

I think textualism is problematic where the law is poorly or ambiguously written...if not don't try to twist it to get a certain result

[striker42]

that's the thing though...it is a question of which reading requires more twisting and contortions...I think Kavanaugh's requires more twisting than Gorsuch's in this case

I think textualism is problematic where the law is poorly or ambiguously written...if not don't try to twist it to get a certain result

Kavanaugh is probably more of an originalist than Gorsuch. There's no doubt that Congress didn't intend to extend protections based on sexual orientation and gender identity. I don't think anyone would argue they did. And so Kavanaugh's guiding principle of originalism leads him to the decision that the Court should not expand Title VII beyond that original intent.

Gorsuch seems to pay lip service to originalism but doesn't seem to practice it. He's the originalist equivalent of someone who goes to church only on Christmas and Easter. His analysis was almost purely textual. He talks about trying to determine what Congress intended but gives little actual consideration to what Congress might actually have intended, just what they wrote.

And as an attorney, I'll tell you almost every law is ambiguous and poorly written. It's not practical to have a 1000 page definitions section at the start every statute and if you did you'd have to have a definitions section to define the words in your definitions section. It's why interpretation of statutes needs to include some human agency. Either try to figure out what was actually meant by those that wrote it or else try to make it work in today's world. Don't rely purely on mechanical applications of words.

[nsacpi]

Seriously though how can you require one group of employees to dress one way and another group another way based on sex

[57Brave]

There is a difference between textualism and originalism. Often they overlap as originalists often look to the text to try to figure out what was meant 200+ years ago. However, this law was passed 50 years ago so there's a better idea of what Congress actually intended.

No one really argued that Congress intended Title VII to cover gender identity and sexual orientation. Gorsuch pretty much said he didn't care and dove into a textualist argument.

There will be side effects though. The flaw of a purely textualist approach is that lawyers are very clever and twisting language is a big part of their business. Clever lawyers will find ways to twist this.

Isnt that our system ?

Clever lawyers still have to make the argument to judge(s)
who in most cases are as clever if not more.

I think that is called evolution


???????

[striker42]

Seriously though how can you require one group of employees to dress one way and another group another way based on sex

9th circuit allowed it in the Jespersen case. Id argue this case throws that in doubt now.