Thread by @wddaughter

The U.S. Supreme Court heard oral argument today in 2 cases raising whether the term “sex” means gender identity or sexual orientation.

The statute Title VII prohibits. because of “sex.” as well as race, religion and certain other characteristics. It does not expressly mention sexual orientation or gender identity.

The Bostock case involves whether you can fire someone because the person is gay/lesbian etc. (But it also may involve whether one can make other distinctions based on procreation or potential for it.)

The transcript in Bostock is here. supremecourt.gov/oral_arguments…

There was discussion about bathrooms, tho this case is only about sexual orientation. The Bostock advocates abandoned the bathroom issue. They said separate bathrooms pose no injury.

Bostock lawyer argues at p. 21, “The bathroom issue has been around since the beginning of Title VII. Title VII has a special provision in 703(a)(ii) that says, when you segregate people, the question is whether that
segregation denies them employment opportunities. ...

The Bostock lawyer continues, “And it is hard to see, quite honestly, how requiring men to use a men's room and women to use a women's room denies them employment opportunities.”

Justice Ginsburg seemed to agree. pp. 20, 48, 54,

Ginsburg at 20: “Would you say the test is -- is the person injured? Yes, it's [bathrooms are] a differential based on gender, but most people are not injured by having separate bathrooms. In fact, they -- most people would prefer it.”

But Gorsuch asked re bathrooms and dress codes isn’t it an injury for some people,
trans people. pp 15-16. But he noted that issue would come up in the next case, Harris Funeral Homes.

Asked about trans people’s dress concerns/bathrooms, Bostock’s lawyer said she was representing someone who was gay & trans questions were better asked of the lawyer representing trans people. p. 17.

This kind of statement explains why some trans folks were resigned to losing before the case was heard. Their own lawyers had split off. They have long coordinated. Would like to have been a fly on the wall when that decision was made.

So it seems the lawyers for sexual orientation discrim. recognition decided to give up on bathrooms. However, they seem to want the burden in other cases where biology is considered to be on the employer to prove biology matters in a given case.

Basically, the Bostock lawyers realized they had to deal with the “parade of horribles” as the one Justice said. They did that by separating from those would would argue trans people need to access bathrooms by gender identity.

Pretty stunning given their past approaches. But are they serious? And what happens to trans people who are caught up in the radical groups?

But the Bostock lawyer also hinted advocates would continue the battle to have corporations:private employers use mixed sex spaces. Maybe that is the private deal here.

Justice Gorsuch seemed amenable to finding sexual orientation discrim. is to some degree based on sex. (What does to some degree mean?) On the other hand,Justice Alito seemed reluctant to read the statute in a way Congress clearly did not intend in 1964.

Kagan and Sotomayer discussed trans people who want to wear uniforms based in gender identity. pp.

Note that the Court is NOT considering constitutional claims here. It is only interpreting a statute. That is the parties’ choice.

The Transcript in the second case, Harris Funeral Homes, is here: supremecourt.gov/oral_arguments…

Sent from my IPhone

Justice Roberts immediately goes to bathrooms . “[I]f the objection of the transgender individual is that I want to use a bathroom consistent with my gender identity, rather than biological sex, do you analyze it as ... based on the transgender status or ... biological sex?”

Justice Sotomayer: “Mr. Cole, let's not avoid the difficult issue, okay? You have a transgender person who rightly is identifying as a woman and wants to use the women's bedroom, rightly, wrongly, not a moral choice, but this is what they identify with.

...”Their need is genuine. I'm accepting all of that --“ ...

... “and they want to use the women's bathroom. But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom.” pp.

...”That's why we have different bathrooms.
So the hard question is how do we deal with that?” p. 10

Cole (representing trans plaintiff) denies that’s the question. He says the question is a distinction based on biological sex, not transgender status. But Justice Roberts says “then there is no disadvantage.” p.14

Justice Alito p 17: “JUSTICE ALITO: Let me move beyond the bathroom to another example. And it is not
before us, but it will be coming. So a transgender woman is not permitted to compete on a woman's college sports team.” ...

...”Is that discrimination on the basis of sex in violation of Title IX?” [Note: Title IX prohibits discrim in educational opportunities on the basis of sex.] p. 16

Cole for Stephens, continues to finesse the issue, but basically suggests a trans person should be allowed to compete based on gender identity. The court allows him to go on for quite a while afterward which suggests to me that they aren’t convinced. pp. 17-21.

Gorsuch asked whether judges should not be hesitant in making broad pronouncements that might dramatically shift social norms. pp. 22-25.

Gorsuch even says that he can buy the textual argument Cole is attempting, but should not the court consider social upheaval. p. 26.

The court spends a lot of time on whether it should judicially update the statute. Absent from this discussion is rhe effect on women, although the court considered it in earlier discussions. The Solicitor Gen. argues it would rob people of the Dem. process.

Solicitor Gen. says important to convince people that a judicial outcome is correct.

Cole rejects this view. Cole has a difficult argument. I think they plan to offer the Gavin Grimm case as the constitutional challenge. It involves a transmale who sought to use girls bathroom at school. But Grimm graduated, and it may be moot.

But advocates want a biologically born female to erase image of biologically male transgemales with all the original anatomy in girls’/women’s bathrooms.

One disappointment was the Justice Breyer’s acceptance of the assertion that bathrooms were not before them. That is naiive. Of course it is before them.