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Comment by throwawaysea | Hacker News Reader

From https://www.wsj.com/articles/supreme-court-rules-for-gay-rig...:

> “‘Sex,’ ‘sexual orientation,’ and ‘gender identity,’ are different concepts,” Justice Alito wrote, observing that repeated efforts to explicitly add the latter terms to Title VII have died in Congress. During debates over the 1964 Civil Rights Act, no member of Congress “said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex,” Justice Alito wrote.

I don't see how the justices who supported this decision can possibly claim that the word 'sex', which has a specific definition that was even more rigid in the 60s, can somehow include 'sexual orientation' or 'gender identity' which are entirely different concepts. This does seem like legislation by Supreme Court.

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They are not saying that. Say you have two employees:

  * Person A is male and has a wife.
  * Person B is female and has a wife.

If you fire person B because of her sexual orientation, you are treating her differently then person A, when the only difference is her sex.

I think the dissent does a good job showing the flaws in that argument, but it's better then you're giving it credit for. The flaw is that you could ask on a hiring form:

  Are you [ ] homosexual [ ] heterosexual [ ] other.

If they answer homosexual and you fail to hire them, you don't even know their sex - so you can't possibly be treating men and women differently.

In your examples you can see the discrimination clearly, but this made me ponder. How about scenarios where the discrimination isn't overtly stated by the discriminators? Let's assume they aren't really upfront and ask you about your sexual preference (Which is very odd since asking personal questions is a big NO-NO in Canada, where I live). Having this law will help in your case, but how can a general person even try to pinpoint why they were fired, especially so if they have an 'at will' status of employement?

For completeness, I'll quote the majority's counterargument to that thought experiment:

> Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.

> The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. [...] Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.

Alito did respond to this too. As he says, if they check a box saying they are black or Catholic, presumably they are one or the other. But checking a box saying you are homosexual doesn't give any information about your sex.

In the decision, they emphasized that these terms are separate concepts in order to come to the conclusion that it's impossible to discriminate on the basis of sexual orientation without also discriminating on the basis of sex. Every example of discrimination based on sexual orientation can be re-framed as an example of discrimination on the basis of sex using a "but-for" test.

From the decision:

> Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

But Alito's dissent extends this same example to make an opposite argument. Suppose we have four people: a man attracted to men, a man attracted to women, a woman attracted to men, and a woman attracted to women. The first and fourth (homosexual) are fired, while the second and third (heterosexual) are not. Now it no longer makes sense to say the ones who got fired were fired because of their sex, because a person of the same sex was not fired in each case.

Sounds like he's almost accidentally stumbled upon the idea of intersectionality.

Many businesses have a "front of the house" consisting of people that interact with customers, clients, etc., and a "back of the house" that might be comprised of warehouse workers, etc. Many businesses in the south used to only hire white people in the front of the house, and only men in the back of the house.

After civil rights laws came into effect, many of these businesses argued that their hiring wasn't racist, because they employ lots of black people (in the warehouse). And they're not sexist, because they employ lots of women (in the front of the house). But if you're a black woman, you're still out of luck. Because of this, the courts ruled that these policies are still considered discrimination on the basis of sex/race. Yes, these hiring policies weren't discriminating against ALL women, but just a subset (women who happen to be black). Or looked at differently, a subset of a race (black people who happen to be women). Either way, it's still discrimination against a protected class - both intuitively, and by law.

Similarly, this decision states that firing someone because they're lesbian or gay would be discrimination against a subset of women (women who are attracted to women), or a subset of men (men who are attracted to men).

In cases involving the protections of individuals, you can't start by looking at the aggregate of all the people working at the company, and analyze the company hiring policy, attribute-by-attribute (e.g. sex, race, etc)., in isolation. It'll still lead to discrimination, because each individual has many attributes, and the combination of those attributes can be the source of the discrimination.

Instead, you have to start with the individual affected person who brought the case forward, look at all of their attributes, and if changing any one (protected) attribute (in this case, sex) would lead to a different hiring/firing decision, then it's considered discriminatory.

> if changing any one (protected) attribute (in this case, sex) would lead to a different hiring/firing decision

First, I'm not convinced this rule is actually in accord with the plain language of the statute. Kavanaugh's dissent argues that, for decades, all three branches of the Federal government--Congress, the Executive, and the Supreme Court itself--have taken "discrimination because of sex" and "discrimination because of sexual orientation" to be two separate and legally distinct categories of discrimination. The majority opinion simply ignores all that prior evidence about how the Federal government has interpreted the plain language of the statute.

Second, it's not clear to me that the hypothetical the majority is using here is the correct one. One of the key grounds given by LGBTQ individuals for their right to equal treatment is that those traits are innate. But if, for example, sexual orientation is an innate trait, then changing a man attracted to men into a woman attracted to men is changing more than just that person's sex: it's changing their sexual orientation as well. In other words, the Court's hypothetical is not "changing just one thing, leaving everything else the same", as it claims to be.

On this view, which is a better reflection of the views LGBTQ people are actually advocating, the proper hypothetical for changing just the person's sex, leaving everything else intact, would be to change a man attracted to men into a woman attracted to women. And in that hypothetical, the hiring/firing decision would not change; and by contrast, in corresponding hypothetical where you only changed sexual orientation, not sex (so changing a man attracted to men into a man attracted to women), the hiring/firing decision would change. Which leads to the opposite conclusion from the one the majority makes.

Appreciate the detailed reply. I understand the dissent better now - it's more nuanced than my initial impression was.

The discussion in this thread has made me fully appreciate, while this might be a step forward for human rights, these protections really do need to be explicitly codified in law as well. Not just because they're resting on fragile interpretations of existing law, but also because this interpretation wouldn't necessarily extend to bisexuals, asexuals, etc.

> Now it no longer makes sense to say the ones who got fired were fired because of their sex, because a person of the same sex was not fired in each case.

They were each fired for something someone of the opposite sex would not have been fired for, so, in both cases, they were fired on the basis of sex since their sex was a sine qua non of the firing.

It's possible for a firm to have two closely related discriminatory policies, one of which discriminates against each sex. They don't net out to nondiscrimination, but instead provide causes of action for discrimination for those harmed by each policy.

I understand that this is the majority's argument. I personally don't find either side's argument in this respect much more convincing than the other; both seem contrived to me.

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