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EmergyHat! @Popehat
, 11 tweets, 3 min read Read on Twitter
Lawsplainer: So what, you may ask, is up with the Trump Administration's brief filed today concerning discrimination against transgendered people, getting a lot of press today?

It has to do with Title VII of the Civil Rights Act of 1964. /1

news.bloomberglaw.com/daily-labor-re…
/2 Title VII is the backbone of federal civil rights law. It prohibits businesses from discriminating based on "race, color, religion, sex, or national origin."

There's a half-century of law about it. But one area is developing: what does "sex" mean?
/3 More specifically, by prohibiting discrimination based on "sex," does Title VII ban discrimination based on gender identity or sexual orientation? This question doesn't come out of nowhere. For years, courts have held that Title VII bans "sex stereotyping."
/4 "Sex Stereotyping" is discriminating against someone because they don't conform to a norm about how a particular gender should act. This is a decades-old concept.

supreme.justia.com/cases/federal/…
/5 But gradually -- first in the area of sexual harassment law -- it's been applied to gays and lesbians. The concept is that discriminating against gays is discriminating against people based on their nonconformity to gender stereotypes, violating Title VII.
/6 In the last couple of years a few courts have explicitly ruled that Title VII DOES prohibit discrimination against gays and lesbians.

This is huge -- it makes the core federal antidiscrimination law protect gays and lesbians.

popehat.com/2017/04/05/law…
/7 Even more recently, at least one court has said that Title VII also protects transgendered people. That's the issue in today's news story -- a petition for Supreme Court review in a case where the court of appeals applied Title VII to a transgendered plaintiff's claims.
/8 The Trump Administration's stance in this case is a little more complicated than is being portrayed -- though not in a material way. Basically, the Trump DoJ's stance is that Title VII does not apply to anything but "sex" in the traditional, 1964-based meaning M or F.
But in this particular brief, the Trump DoJ is saying that the Supreme Court should first review and resolve one of the earlier cases that applied Title VII to a gay or lesbian plaintiff, an issue on which there is already an explicit split among courts of appeal. /9
/10 The procedural argument is, well, arguable -- it makes sense to resolve one of the prior cases on the issue that has already caused a split in the law. But it's clear that in ALL of those cases, this DoJ wants the court to restrict "sex" to traditional meaning . . . .
/11 ...which would return the state of the law to what it's been until very recently for some people, that Title VII does not prohibit discrimination based on sexual orientation or gender identity. It's nice to imagine a Congress that would fix that. /end
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