>Aren’t these cases different, the employers ask, given that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? Sup-pose an employer asked homosexual or transgender appli-cants to tick a box on its application form. The employerthen had someone else redact any information that could beused to discern sex. The resulting applications would dis-close which individuals are homosexual or transgenderwithout revealing whether they also happen to be men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination?

>No, it doesn’t. Even in this example, the individual ap-plicant’s sex still weighs as a factor in the employer’s deci-sion. Change the hypothetical ever so slightly and its flawsbecome apparent. Suppose an employer’s application formoffered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone whochecks that box, would we conclude the employer has com-plied 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.

This is shockingly bad logic. Their counter examples clearly have the employer learning the applicants race/religion. The fact that the employer uses crude definitons i.e. [Black/Not Black] and [Catholic/Not Catholic] doesn't change that. The employer simply redefined racial/religious groups to suit their particular needs.