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@adamliptak @nytimes This article comes across as objective. But it isn’t. It ignores several key points that readers should know to understand the issues.
(I filed papers in these cases as a citizen,
as noted below.) First, advocates have declined to raise a constitutional challenge. It is for that reason that the case is only about what a statute Congress passed means.
as noted below.) First, advocates have declined to raise a constitutional challenge. It is for that reason that the case is only about what a statute Congress passed means.
In our system of government, courts are not legislators. It is important to understand how the choice to press statutory claims could affect the outcome here.
The reason constitutional claims were not pressed may have to do with politics. Advocates may not want to give this Court the chance to address marriage again, even indirectly. In the past, they have settled cases that raised it, rather than having it come up before this Court.
And yet, the decision not to raise a constitutional claim is key and may limit what even those who are inclined to support the plaintiffs can do.
Second, the article ignores the issues affecting women that have been raised in the case. The interpretation that advocates press would essentially give the male-bodied control over sex discrimination cases-and women would have less control.
Here is why. Advocates claim that differentiating on the basis of sexual orientation or gender identity is ALWAYS discrimination because of sex. If that is true, then differentiating based on biological sex can NEVER play a role in law.
If that is true, you cannot ever have rules that protect women’s safety because women are comparably uniquely vulnerable due to size or weight.
You cannot have safe spaces for women. You may not be able to base leave policies based on female pregnancy (as a temporary disability) rather than parenthood.
You cannot recognize biogical difference in any way. Sexual Orientation and Gender Identity would replace biology in ALL cases. One of the cases, Zarda, raises a claim of sexual harassment. The alleged perpetrator was a gay man. Advocates just ignored that fact.
So this case is not just about people being discriminated against due to sexual orientation or gender identity. It is about women being discriminated against too if the Court adopts the advocates’ rule.
But opponents argue there should be NO protections under Title VII. That also seems NOT right.
Historically, vis a vis women, both gay men and trans women have had the social and economic advantage of “male bodied ness.” While it may have been a disadvantage vis a vis men, it. as an advantage vis a vis women.
The economic power that some gay men and trans women have is not merely a function of merit. It is also a function of the historical social and economic privileges of being perceived as male-bodied.
A simple comparison of women (including lesbians) in high corporate leadership positions compared to gay men underscores the point. And it holds true for trans women as well. The male bodied have long had advantages over the female bodied.
And these groups have sometimes used that privilege to discriminate against women. Even compare trans women to trans men. Look at the economic positions of some of those who have come out vis a vis women of their time.
Race plays a role here too. Some of those gay men and trans women are the benefactors of substantial racial privilege, a product of historical discrimination. Women of color/female bodied then are part of this oppression discussion. But so too are men/male bodied of color.
The “sex” provision of the statute at issue here, Title VII, was passed to help women overcome discrimination. It bans discrimination because of an individual’s sex.
It was passed in 1964. We know that Congress was not intending to include sexual orientation and gender identity discrimination under “sex” in 1964.
Nor is there any evidence that Congress later sought to amend the statute to have the word “sex” mean gender identity.
I have challenged how the @USEEOC arribed at these policies in one of my briefs.
Trump has reversed most of these policies. The @USEEOC, an agency independent of the President, has not reversed (but it has altered some related info on its website). Trump has replaced or is in position to replace most of the members who adopted the policies.
Congress has also repeatedly declined to alter the statute when asked. Many bills have been offered.
So the issue is not as simple as the @nytimes describes. My briefs are here. supremecourt.gov/DocketPDF/17/1… supremecourt.gov/DocketPDF/18/1…
