Thread by @wddaughter

@nesbitt_jill @cathyloftus @name_legendary Well, what is “discrimination” is not is the eye of the beholder in these cases. Some would say differentiation rather than diacrimination in some cases-such as intimate spaces.

@nesbitt_jill @cathyloftus @name_legendary But I can answer your question this way. The US has several statutes dealing with sex discrimination. The courts tend to interpret them similarly. So it is absolutely possible that an interpretation regarding employment will affect education.

@nesbitt_jill @cathyloftus @name_legendary Moreover, each side will definitely argue this later-that one interpretation affects@the other statutes.

@nesbitt_jill @cathyloftus @name_legendary So the other issues that might be affected include educational access and particularly bathrooms and intimate spaces and sports;

@nesbitt_jill @cathyloftus @name_legendary Also access to fair housing could be affected but that would include not only regular homes and apartments but also shelters;

@nesbitt_jill @cathyloftus @name_legendary Then there are other issues that might be as well.

@nesbitt_jill @cathyloftus @name_legendary There really are two distinct issues in my view. The first is wherher we must replace the word “sex” with gender in every case to include gender identity and sexual orientation. That approach woumd prohibit ANY reliance on biology.

@nesbitt_jill @cathyloftus @name_legendary The second issue is, even if sex means sex, are there some instances in which gender discrimination is barred because it is close to sex discrimination and the thpe of discrination, Congress intended to ban.

@nesbitt_jill @cathyloftus @name_legendary For example, should someone be able to refuse to hire a qualified trans person merely because of how they dress? Could they refuse to hire a woman for the same reason-because of how she dresses?

@nesbitt_jill @cathyloftus @name_legendary So I think personally that the Court will be looking for intersections, not completely replacing sex with gender. That is what I urged them to do in my briefs.

@nesbitt_jill @cathyloftus @name_legendary Now there you must understand some things about the US legal system here. First, the Constitution may offer different and broader rights than a statute. The plaintiffs have only launched a statutory challenge here.

@nesbitt_jill @cathyloftus @name_legendary Second, we have a federal system in which states are independent sovereigns unless they have given up those rights in the Constitution. So states have employment laws too. Some states already offer what the plaintiffs want. They want to make those standards national.

@nesbitt_jill @cathyloftus @name_legendary But manys states have already rejected imposing those standards on employers. Some justices may be wary and think they should let states decide. But some justices will feel there are some rights that should be nation-wide.

@nesbitt_jill @cathyloftus @name_legendary And finally, the US system tends to follow precedent, that is prior decisions. In this case, a federal agency, not a court,
issued new interpretations and the courts followed the agency. I think the Court will have a problem with that.

@nesbitt_jill @cathyloftus @name_legendary They have already signaled that concern in some recent cases.

@nesbitt_jill @cathyloftus @name_legendary So it is very possible the court will reject the agency interpretation and issue its own interpretation. I think that is the most likely scenario.

@nesbitt_jill @cathyloftus @name_legendary Now what will that interpretation be? There is a battle over how to interpret a statute. Do you just look at the plain meaning of the words today? Do you consider the ordinary meaning to the public when it was passed. Do you consider what Congress intended?

@nesbitt_jill @cathyloftus @name_legendary I think any of these tests is difficult for the plaintiffs. But there is a chance the court will take the route of determining intersections as I suggested. They took this route previously in a case called Oncale.

@nesbitt_jill @cathyloftus @name_legendary So they may decide that intimate spaces are reserved and sex does not lean gender but you cannot refuse to hire someone because you think they should dress like a different sex-unless sex is a vona fide qualification for the occupation (BFOQ). The statute allows a BFOQ exception.

@nesbitt_jill @cathyloftus @name_legendary Hope that helps.

@nesbitt_jill @cathyloftus @name_legendary I should add one more thing. Under this statute, Title VII, there have long been 2 types of claims. First, one can claim that an employer intentionally treated similarly situated people differently. That is called a disparate treatment claim. That is what has been alleged here.

@nesbitt_jill @cathyloftus @name_legendary The second type of claim does not require intent. It asserts that a neutral rule has a disparate impact on a particular group protected under the statute. In 2 of the 3 cases at least, it seems plaintiffs assert a disparate treatment claim (not disparate impact).

@nesbitt_jill @cathyloftus @name_legendary They could have asserted both, in the alternative. And looking at the third case it also seems to focus on disparate treatment. They do this because they don’t want to distinguish themselves & perhaps and because they & some scholars want to broaden disparate treatment law.

@nesbitt_jill @cathyloftus @name_legendary I should also say the government (Trump admin) is arguing that while LGBT persons are protected from sex discrimination as males and females, they are not protected because of sexual orientation or gender identity and that those differ from “sex” discrimination.

@nesbitt_jill @cathyloftus @name_legendary The Gov says that before the Court can find a remedy for LGBT persons being treated differently in the workplace, Congress must act.

@nesbitt_jill @cathyloftus @name_legendary Remember that being treated differently includes marriage benefits. The plaintiffs want to argue one cannot differentiate based on procreational differences. Remember that, by design so far, we don’t have the social welfare system European nations have.

@nesbitt_jill @cathyloftus @name_legendary So lurking behind all this is also a desire to have procreational benefits based on parental status and not birth status. So surrogacy rights are involved too. Many states have long resisted surrogacy (and don’t you believe the people on the internet who claim otherwise.)

@nesbitt_jill @cathyloftus @name_legendary They ultimately want a couple with children through a surrogate to have the same leave rights as a couple containing one partner who gives birth. Note that lesbians can be in the second category—but biological males cannot.