Case: 17-13801 Date Filed: 05/10/2018 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT … Although Gorsuch can claim that “transgender status [is] inextricably bound up with sex” because “transgender status” is defined precisely in opposition to sex and he presumes the very sex binary his opinion will help to further erode, how will he argue a genderfluid or genderqueer identity is “inextricably” bound to sex?Consider what mental health expert Diane Ehrensaft says about genderfluid children: “They refuse to pin themselves down as either male or female—maybe they are a boy/girl, or a gender hybrid, or gender ambidextrous, moving freely between genders, living somewhere in-between, or creating their own mosaic of gender identity and expression.”.This understanding of gender identity is utterly detached from sex, not inextricably connected to it. Granted. His legal team contends that his firing is a violation of Title VII of the Civil Rights Act, which prohibits sex discrimination, and which the legal team argues applies to sexual orientation. Facts of the case Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare services coordinator in 2003. Gerald Lynn Bostock v. Clayton County, No. Now it’s true that “changing the employee’s sex would have yielded a different choice.” But the negative treatment the employee faced was not sex discrimination, provided the employer imposed no double standard for men and women, because each are prevented from entering the opposite sex’s private space.
Gorsuch’s opinion more than once seems to invite Congress to exercise its role as a check and balance on the court. Whatever we think about these identities, they have no relation at all to sex. What would he say about “nonbinary” identities, which have no relation to sex at all? He’s offered half a theory of sex discrimination.An approach that looks for sex-based double standards is not only the best reading of the statute; it fits Supreme Court precedent involving Title VII, as,Title VII forbids unfairness because of sex. Moreover, it notes that 37% of lesbian and gay individuals and 90% of transgender individuals have experienced workplace harassment. In 2013, Bostock began participating in a gay recreational softball league. . CLAYTON COUNTY BOARD OF COMMISSIONERS, Defendant, CLAYTON COUNTY, Defendant-Appellee. sex” at the time of Title VII’s enactment, and courts’ reliance on this plain meaning in their past decisions, indicate that Title VII does not prohibit sexual orientation discrimination. sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. The simplistic test that Gorsuch puts forth looks for the “but-for” cause and “negative” treatment, but it doesn’t link the two: It doesn’t look for disadvantages directed at individuals of only one sex. Op. Here, too, men and women are exposed to the same exact terms and conditions, so this would not be discrimination based on sex. & G.R. Either that, or it believes only males with a “transgender status” have the privilege of entering female-only spaces.Gorsuch’s theory does not test for sex discrimination. The employers counter that the plain meaning of “because of . Title VII prohibits employers from discriminating against people based on their sex – and many litigators over the course of many years have successfully argued that this also protects LGBT people from employment discrimination.The U.S. Supreme Court has ruled 6-3 in favor of Gerald Bostock and in two other LGBTQ workplace discrimination cases (,Case Seeking Religious Exemptions from LGBTQ Non-Discrimination Laws,Religious Exemption Cases: Public Accommodations,Sharonell Fulton et al. In a case of sex discrimination, sex must not only be a “but-for” cause of differential treatment; that differential treatment must also entail disadvantageous terms or conditions to which members of only one sex are subjected. How will Gorsuch handle a plaintiff like this? Freedom for All Americans. And, of course, nothing hinges on whether this lifeguard currently “identifies” as a woman or a man.Consider another example. Bostock asserts that the plain language of Title VII’s clause “because . Aud. %PDF-1.7 %���� The logic of Gorsuch’s opinion, such as it is, makes no sense once you get beyond “trans” gender and consider contemporary gender theory. Part of his job was to participate in tandem skydives with clients, in which he was necessarily strapped in close proximity to the client.
Indeed, his entire opinion rests on a sex binary. . endstream endobj 144 0 obj <>stream The,The State of Tennessee et al. Even if “homosexuality … [is] inextricably bound up with sex,” that doesn’t change this reality.And lastly, consider an employer who will hire so-called cisgender men and women, but not transgender men and women. . Additionally, Business Organizations assert that including sexual-orientation discrimination under Title VII’s protections would create a range of complex issues that the Court is not equipped to address and would complicate the ability of employers to effectively comply with the law.The SPLC, in support of Bostock, argues that LGBT workers will be harmed without Title VII protections. May 25, 2018: Gerald Bostock filed a petition with the U.S. Supreme Court. But the simple test Gorsuch applied here yields ready answers in other contexts. C4=&9��>�D�)��㰸�� �D(� 3 And so, likewise, even if “transgender status [is] inextricably bound up with sex,” that doesn’t change which factor was decisive: Men and women are held to the same exact standard, so there’s no sexual double standard and no discrimination on the basis of sex.Now, whatever one may think about these three cases as a matter of ethics or policy, Congress acted in 1964 to address only the first case—and it has explicitly rejected policies to address the latter two. What would Gorsuch say? 2018) Annotate this Case. Harris Funeral Homes v. .
Gorsuch’s opinion more than once seems to invite Congress to exercise its role as a check and balance on the court. Whatever we think about these identities, they have no relation at all to sex. What would he say about “nonbinary” identities, which have no relation to sex at all? He’s offered half a theory of sex discrimination.An approach that looks for sex-based double standards is not only the best reading of the statute; it fits Supreme Court precedent involving Title VII, as,Title VII forbids unfairness because of sex. Moreover, it notes that 37% of lesbian and gay individuals and 90% of transgender individuals have experienced workplace harassment. In 2013, Bostock began participating in a gay recreational softball league. . CLAYTON COUNTY BOARD OF COMMISSIONERS, Defendant, CLAYTON COUNTY, Defendant-Appellee. sex” at the time of Title VII’s enactment, and courts’ reliance on this plain meaning in their past decisions, indicate that Title VII does not prohibit sexual orientation discrimination. sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. The simplistic test that Gorsuch puts forth looks for the “but-for” cause and “negative” treatment, but it doesn’t link the two: It doesn’t look for disadvantages directed at individuals of only one sex. Op. Here, too, men and women are exposed to the same exact terms and conditions, so this would not be discrimination based on sex. & G.R. Either that, or it believes only males with a “transgender status” have the privilege of entering female-only spaces.Gorsuch’s theory does not test for sex discrimination. The employers counter that the plain meaning of “because of . Title VII prohibits employers from discriminating against people based on their sex – and many litigators over the course of many years have successfully argued that this also protects LGBT people from employment discrimination.The U.S. Supreme Court has ruled 6-3 in favor of Gerald Bostock and in two other LGBTQ workplace discrimination cases (,Case Seeking Religious Exemptions from LGBTQ Non-Discrimination Laws,Religious Exemption Cases: Public Accommodations,Sharonell Fulton et al. In a case of sex discrimination, sex must not only be a “but-for” cause of differential treatment; that differential treatment must also entail disadvantageous terms or conditions to which members of only one sex are subjected. How will Gorsuch handle a plaintiff like this? Freedom for All Americans. And, of course, nothing hinges on whether this lifeguard currently “identifies” as a woman or a man.Consider another example. Bostock asserts that the plain language of Title VII’s clause “because . Aud. %PDF-1.7 %���� The logic of Gorsuch’s opinion, such as it is, makes no sense once you get beyond “trans” gender and consider contemporary gender theory. Part of his job was to participate in tandem skydives with clients, in which he was necessarily strapped in close proximity to the client.
Indeed, his entire opinion rests on a sex binary. . endstream endobj 144 0 obj <>stream The,The State of Tennessee et al. Even if “homosexuality … [is] inextricably bound up with sex,” that doesn’t change this reality.And lastly, consider an employer who will hire so-called cisgender men and women, but not transgender men and women. . Additionally, Business Organizations assert that including sexual-orientation discrimination under Title VII’s protections would create a range of complex issues that the Court is not equipped to address and would complicate the ability of employers to effectively comply with the law.The SPLC, in support of Bostock, argues that LGBT workers will be harmed without Title VII protections. May 25, 2018: Gerald Bostock filed a petition with the U.S. Supreme Court. But the simple test Gorsuch applied here yields ready answers in other contexts. C4=&9��>�D�)��㰸�� �D(� 3 And so, likewise, even if “transgender status [is] inextricably bound up with sex,” that doesn’t change which factor was decisive: Men and women are held to the same exact standard, so there’s no sexual double standard and no discrimination on the basis of sex.Now, whatever one may think about these three cases as a matter of ethics or policy, Congress acted in 1964 to address only the first case—and it has explicitly rejected policies to address the latter two. What would Gorsuch say? 2018) Annotate this Case. Harris Funeral Homes v. .