Comment by dahfizz | Hacker News Reader

Comment by dahfizz | Hacker News Reader

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> I happen to agree with Justice Gorsuch’s majority opinion (the existing law already covers such discrimination, in view of the text and existing judicial gloss on the text).

Could you expand on this a bit? I'm genuinely asking. The article sums up the contention pretty well:

> The legal fight focused on the definition of “sex” in Title VII. The plaintiffs, along with civil rights groups and many large companies, had argued that discriminating against gay and transgender workers was inherently based on their sex and consequently was illegal.

At first glance, I think I agree with Judge Lynch. Its great that these protections extend to more people, but I think the argument is tenuous. A gay man and a straight man have the same sex, so discrimination against the gay man is not really based on sex, but on sexual orientation.

And, as I understand it, the difference between sex and gender is very important to transgender people. Biological sex != the gender you identify as, that's why we say trans_gender_ and not trans_sex_ . How does a MTF trans person who has not undergone surgery / hormone treatment / sex change answer if asked what her sex is? Again, genuine question.

I guess this is a "spirit of the law" situation, where "sex" doesn't just mean "sex", but all sex /gender/orientation/ groupings of people.

Personally, I think it would have been ideal to amend the law and explicitly add gay / transgender people as a protected class. This avoids the possibility of another case in a few years overturning this one. But the current congress would never write such a law.

Title VII prohibits employment discrimination against someone “because of” their “sex.” Supreme Court precedent holds that this phrase includes discriminating against someone for not conforming to sex stereotypes. For example, in Price Waterhouse v. Hopkins the Court held that it was Title VII discrimination to fire a woman because she had masculine behaviors. She wasn’t fired because she was a woman, but because she was a woman who did not conform to stereotypes and norms applicable to women.

In view of that precedent, Title VII can be seen to prohibit sexual orientation and sex discrimination. You can’t fire a man for failing to conform to the male norm of dating women. You likewise can’t fire someone whose sex is male, but whose gender identity is female (i.e. she does not conform to the gender expression expected of biological men).

That makes a ton of sense, the precedent about sex stereotypes was the missing piece for me. Thanks!

Also, In the article I believe the reasoning is outlined that given you wouldn't fire a woman for dating a man, then firing a man for dating a man is discriminating on he basis of sex. The behavior alone isn't objectionable, it's only when sex comes into play that you start discriminating which cases are ok and which aren't.

The crux of the argument is: "Pretend that you could magically change a person to the opposite sex but leave everything else the same. If that changes your decision to fire the person, it's sex-based discrimination."

I don’t think that quite explains it—try applying that thought experiment to a man or woman fired for being bisexual. I think the Price Waterhouse precedent of conforming to sex-based norms is an indispensable part of the puzzle.

The majority opinion doesn't mention the word "bisexual" ... perhaps indeed because their argument doesn't work?

'defen seems to summarize the crux correctly. "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."

Yes, the fight for explicit protection via legislation does need to continue, because this decision (potentially) leaves a loophole open to fire bisexuals, asexuals, etc.

Still a step forward, though.

Regarding sexual orientation I found this bit of logic interesting:

“By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women"

Basically, if a particular gay man wasn't a man then he wouldn't have been penalized, so it follows that the discrimination is tied to his sex.

>regarding sexual orientation

However, if I am reading Gorsuch's argument correctly, firing or not hiring someone for solely sexual orientation would be legal. A company could have a policy that says "we only hire people attracted to women." If someone comes out as as attracted to men, they could be fired. As long as the company consistently applies said policy to men and women, it doesnt appear to run afoul of this ruling.

Though your hypothetical seems like it would run afoul of disparate impact protections. A violation of Title VII may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class. AFAICT, a disparate impact also does not require a showing of intention.

But is sexual preference a protected class?

It really boils down to whether sexual preference is viewed as "being attracted to the other or the same" or "being attracted to men or women." The former uses the sex of a person to discriminate, while the latter does not.

No the disparate impact I'm talking about has nothing to do with sexual preference. I'm talking about disparate impact on sex.

Suppose (per your comment) a company indeed had a policy that says "we only hire people attracted to women". Given the current sexual orientation distribution in the world, such a policy would result in a disparate impact in which the vast majority of people that qualify would be men, and not women. This creates a disparate impact on the basis of sex.

https://en.wikipedia.org/wiki/Disparate_impact

What is the scope of this geographically? Does disparate impact apply locally, or is it generalized nationally first? If the discrimination took place somewhere like Palm Springs, in a place where half the population is LGBTQ, could they get away with it?

The scope of the law is probably commensurate the scope of the employment policy in question — i.e. for a nationwide company, the scope might be applied nationally. For a local mom-and-pop shop, it might apply locally.

All that being said, I'm pretty sure there is no locality on the planet where half the population is LGBTQ (not sure where you found that Palm Springs claim). As of 2015, the metropolitan area with the highest rate of LGBTQ residents was San Francisco, at 6.2% [1].

[1] https://www.nytimes.com/2015/03/21/upshot/the-metro-areas-wi...

Yeah I dont believe it, its a platitude thats been repeated, BUT, 10.7% of households identify as same sex in the census.

http://web.archive.org/web/20181205015304/https://williamsin...

Yes, and also worth mentioning that this ruling really only impacts a subset of states.

There already exists state laws that explicitly outlaw discrimination on the basis of sexual preference / gender identity, California being one of them [1].

Per the map, this ruling really only affects a subset of states where the disparate impact of your hypothetical law would be pretty clear cut, regardless of scope.

[1] https://i.imgur.com/7QBYkvp.png

I think you misread that pdf. The highest % of same sex couple is in San Francisco at 3%.

> At first glance, I think I agree with Judge Lynch. Its great that these protections extend to more people, but I think the argument is tenuous. A gay man and a straight man have the same sex, so discrimination against the gay man is not really based on sex, but on sexual orientation.

“Sexual orientation” is just the combination of your sex with the sex to which you are attracted. (And, of course, that's not the issue with transgender discrimination, anyway.) But, both sexual orientation discrimination (because sexual orientation is your sex + the sex of your preferred partner) and transgender discrimination (your sex plus you gender identity) are clearly discrimination based on sex:

A woman who is attracted to women is given adverse employment treatment not given to a woman who is attracted to men.

A man who is attracted to men is given adverse employment treatment not given to a man who is attracted to women.

A biological male who identifies with (or expresses stereotypical traits of) the feminine gender is given adverse employment consequences not given to a biological female who identifies with (or exhibits stereotypical traits of) the feminine gender.

A biological female who identifies with (or expresses stereotypical traits of) the masculine gender is given adverse employment consequences not given to a biological male who identifies with (or exhibits stereotypical traits of) the masculine gender.

In all four cases, the difference on which adverse treatment is conditioned is the target’s sex, QED, each practice is sex discrimination.

Hiding behind a word other than sex which means “the relation between the target’s sex and some other factor” doesn't change that the differentiating factor is sex.

The fact that sexual orientation has anything to do with a person's own sex is crazy. We need to normalize better terminology that just says who you're attracted to.

We only really need it to determine whether we're compatible with other people anyways: I like A + you are A + you like B + I am B = compatible. (Where A and B might be different or equal)

Ideally we'd live in a world where even that doesn't matter and everyone just chooses partners based on whether they enjoy that person's company etc. but I feel like that world is much further into the future :)

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