On L.G.B.T. Rights, the Supreme Court Asks the Question

Apr 25, 2019 · 326 comments
Rocky (Seattle)
"...interpreting Title VII generously to cover, for example, sexual harassment, not only of women by men but also between members of the same sex." Pardon me, Ms. Greenhouse, but your slip is showing. You've left out women harassing men. Don't think that doesn't exist. It does, more than is thought. Tsk, tsk.
DL (Albany, NY)
I used to consider myself socially liberal. I believe whom one chooses to love or sleep consensually with is nobody else's business; that there's an abundance of well qualified female journalists, physicists, engineers, physicians, athletes, or male nurses, and that nobody should be denied the right to pursue his or her abilities and aspirations based on gender, sexual orientation, race or religion. Those values have thankfully become almost mainstream, but the social left has left me behind! While certainly anyone should have the right to carve anatomical features out of cells in one's own body with chromosomes that speak otherwise, I don't believe such procedures should be paid for by public or private insurance, or the military, any more than they should pay for breast or penis enlargements for people who "identify as" well endowed women or men. I don't want people who opt for such things pushing their gender ambivalent appearances in my face, and I certainly don't want the courts mandating that businesses allow them to.
Bobn (USVI)
I have little doubt that the intent of those who voted for the CRA did not include protecting trans or gay people. Nevertheless, the actual words of the CRA cannot be ignored. It is illegal to discriminate on the basis of "sex". Perhaps they never conceived of developments that would allow people to change "sex", but welcome to the modern world. In some ways, the same argument was raised when the Constitution was amended after the Civil War. Within a few years, some argued that the intent was only to address discrimination against blacks, but the plain language covers all races. The Supreme Court quickly made that clear. So they should for trans people. As for Title VII covering gay people, I think it's an absurd argument. We have not fought for civil rights for decades while no one noticed we were already protected. It's a dishonest argument and one that should never have received the support of gay-rights groups. I can't see how we will win and I only hope we don't drag trans people along with us to defeat.
woofer (Seattle)
In purely political terms it would be suicidal for the Court's conservatives to reverse the national trend toward recognizing LGBT rights. First, to the extent that they may be philosophically libertarian in outlook, regulation based on sexual identification should offend conservative judges on principle. Second, to the extent that the core mission of the Republican Party is now to champion white nationalism, a harsh attitude toward gender politics is not required. Gay activism is mostly white and middle class in origin, and LGBT politics has visibly compromised with the right in embracing conventional monogamous marriage and military service. The GOP would surely harvest its fair share of white LGBT voters if gender discrimination were removed as an active threat. And, grumbling aside, the evangelical right is not going to abandon the Republicans on the basis of LGBT politics. They have no place else to go. One thing Trump's triumph over Cruz for the GOP nomination in 2016 proved is that among voters who embrace both racism and evangelicalism, the former force is far more potent. As long as Trump continues to play the race card, the existing Republican base will loyally stay the course -- regardless of marginally liberalized attitudes on LGBT issues.
B Brain (Chappaqua)
5 Republicans. 4 Democrats. You do the math.
Paul (Bellerose Terrace)
Expect the Four Federalist Society trolls on the Court to utterly ignore Cabranes’ opinion. This will undoubtedly be a 5-4 decision. Which way it goes depends on whether there are gay or transgendered members of Roberts’s family or among his close friends.
Paul (Bellerose Terrace)
The esteemed Ms. Greenhouse underestimates Sam Alito, the author of the risible Hobby Lobby, who was able to see corporations’ religious beliefs. Of course, unlike Chick-Fil-A, Hobby Lobby, with Alito’s support, fails to observe the Sabbath. Those conservatives who like to cite Leviticus regarding homosexuality, conveniently ignore that that same section of Leviticus says that the penalty for working on the Sabbath is...death. So Chick-Fil-A lives while Hobby Lobby and the NFL are condemned?
Chuck (PA)
It would seem most of America has never read Martin Luther's Letter From The Birmingham Jail or the letter to him that caused his response. Pinning their hopes on Trump to keep the status quo may keep them in the fold.
pjc (Cleveland)
The terse opinion cited by the author is a good one: "“This is a straightforward case of statutory construction,” Judge Cabranes wrote. “Title VII of the Civil Rights Act of 1964 prohibits discrimination ‘because of sex.’ Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.”" But the Left must be careful to not get hoisted by its own petard. As I understand things these days, sex is different from gender which is in turn different from sexuality. I have heard many fine academics make sure we make these distinctions. But if we make those distinctions, Judge Cabranes' reasoning is faulty. Gender is a social construct or personal expression; sex is mere biological chance; and sexuality cannot be bound to either. So, an individual can be born and sexed as male, but identify and present as female gender, but might keep their male genitalia for reasons of their sexuality. Judge Cabranes' argument is shredded by this vivisection. And it would be a gift from the left to those who would deny the rights they so poorly are defending. Never hire a philosopher as a lawyer. Note bene.
areader (us)
If we think Darwin is right, why would the nature create a subset of species who don't want to reproduce?
Jay Orchard (Miami Beach)
Here's another hypothetical that demonstrates that sexual orientation discrimination is NOT sex discrimination under Title VII: Let's say that on Monday an employer announces that henceforth, any female employee who has a sexual relationship with a woman will be SUSPENDED for a day for each such infraction, and that any male employee who has a sexual relationship with a man will be immediately FIRED. On Tuesday, Jane tells her employer that she is sexually involved with a woman. The employer suspends Jane for a day. On Wednesday Bob tells his employer that he is having a sexual relationship with a man. The employer immediately fires him. If discrimination on the basis of sexual orientation constitutes sex discrimination, then Jane has a claim for sex discrimination because if she had been a MAN who was involved with another woman there would have been no suspension at all. Bob also has a claim of sex discrimination because his employer treats men more harshly than women for engaging in similar behavior. It is absurd to claim that by implementing this single same gender relationship policy the employer is guilty of sex discrimination against BOTH men and women. But that would be the result if sexual orientation discrimination equals sex discrimination under Title VII. Common sense dictates that in the above scenario only Bob has an actual sex discrimination claim because his employer treats men more harshly than women when it comes to same sex relationships.
b fagan (chicago)
@Jay Orchard - Not really. Assuming the relationships were outside of the job, and don't affect the employee's work, there's no valid reason the company could punish either of your hypothetical employees. The company is punishing both for behavior unrelated to work, regardless of the discrepancy between punishments. So both actions are prejudicial meddling in personal life instead of related to the employee's on the job behavior. But tell us, assume your policy was in place at two companies, and Jane was suspended at company A and Bob was fired at company B. Since they are two employers, completely unrelated, why doesn't Jane have a case against her employer?
Jay Orchard (Miami Beach)
@Jay Orchard In fact, let's say an employer's policy is to fire all employees of either sex for engaging in same sex relationships, and a male employee and a female employee are fired on the same day for engaging in same sex relationships. How can both the man and the woman have claims of sex discrimination against the employer based on the same sexual orientation policy? In a sex discrimination case either women are being discriminated against or men are being discriminated against. They both can't claim sex discrimination based on the same policy. What both CAN claim is sexual orientation discrimination provided that there is a statue which prohibits such discrimination. It's way past time for Congress to enact such a law.
Jay Orchard (Miami Beach)
@b fagan Of course with whom an employee has sex outside the workplace should be none of the employer's business. But if the employer makes it his/her business it's not sex discrimination -it's bad business.
areader (us)
"We’ll find out whether federal law protects L.G.B.T. employees from being fired for who they are." From being fired for who they are or who they say they are.
Occupy Government (Oakland)
@areader do you say you are somebody else at work?
areader (us)
@Occupy Government, No, I don't say I'm a woman.
Occupy Government (Oakland)
When the good ol' boy Southern Democrats were debating Title VII's race-based protections, they didn't want it to pass. They threw in discrimination because of "sex" as a poison pill, to peel off more conservative votes. Notice they used "sex" instead of "gender" because it was more lurid. To everyone's surprise, the bill passed. It would be just deserts if that old legislative legerdemain came back to bite conservatives again.
Joe (NYC)
If this ruling turns out the way the left wants, women's sports will not be able to exclude those who were born male.
rbyteme (Houlton, ME)
I seem to recall women already lost that protection for things like fitness centers.
Stephan (N.M.)
Too far too fast. The reality of situation is much of the country isn't ready to accept LGBT should have special rights at work. This wasn't over what the plaintiff did at home. This was the Plaintiff bringing their private life to work. And bluntly from the companies perspective that was bad for business. Most people in coastal enclaves don't seem to realize that in much of country men dressing as women is considered unacceptable behavior law or not. And for his employers it would cost them business depending on their profit margins enough to drive them into the red. Personally I don't understand why so many people expect the employer to sacrifice his business for someones PRIVATE life. Your private life is at home not at work. Bluntly legislating from the bench (Which this is) is pushing people further then they are willing to accept. As I said too far too fast.
T (Virginia)
@Stephan Transgender people are not "men dressing as women" and vice versa, and neither is anyone asking for "special rights", only equal ones. There's also an inherent hypocrisy in saying that all elements of one's private life should stay at home and not work while also being okay with one person being pushed out of employment by another person's private beliefs. It seems to me that the problem is not that most of the country "isn't ready", it's that too much of the country still thinks of LGBT people as predatory confused boogeymen instead of human beings who just want to live their lives as the people they are.
Julie (Minnesota)
I agree, private lives should stay at home. The best solution then is to make it illegal to bring photos of family for your desk; employees must use gender non specific terms for significant others such as "my spouse"; we need legally mandated uniforms of gray jumpsuits; employees must be banned from open displays of religion (e.g. cross necklaces); political bumper stickers must be covered before entering the workplace parking lot; finally, all forms of PDA must be banned from public spaces. Fair's fair after all, if must dance around the fact that I am in a same-sex marriage then you must do the same for your heterosexual marriage.
Stephan (N.M.)
Ooh but they are asking for special rights. The company has a business to run and in many parts of the country a man in a dress whether their have gender dysphoria whatever you want to call it is considered of the Social Norms. People DON'T go to business' they feel uncomfortable with. And when people don't go to your business because they feel uncomfortable they don't spend money. And business exists to make money NOT make people comfortable with their sexual identities. Why exactly should a business sacrifice itself for an employees issues? Which is what the plaintiff is asking for. Legislating from the bench DOESN'T work. You can make it legal from the bench no doubt, But you CAN'T make socially acceptable. And this isn't pictures on your desk or whether your married to man or woman. this is ramming it straight in the face of a businesses customers. Who don't want to deal with it and don't want to be forced to deal with it. And rather then be forced to deal with it... They'll take their business elsewhere. What is considered normal unquestionable in N. Y. or Frisco or Denver or even Phoenix. Isn't all that socially accepted in Fort Collins, Butte, Des Moines or Carlsbad. Forcing change from the bench when society isn't ready really doesn't work well.
rbyteme (Houlton, ME)
If the court has no intention of messing with precedent, then why is it hearing these cases at all? And is it really fair to compare the court of the early 90s with the court we have today? There are several individuals on today's court that I personally do not believe are capable of non-partisan judgment (or are even qualified to sit on this court), while I felt the individuals on earlier courts were more interested in being fair and true to not just their interpretation of the law but also the will of the people. Maybe my perception is wrong, but sadly I have zero trust that this court will make a good faith decision based on anything besides the ideologies of unchecked capitalism and evangelical Christianity.
Gene (CO)
Fully automatic weapons were never imagined when the second amendment was written. Yet they are now protected. Adding coverage for transgenders to protect against discrimination should be a no brainer.
R.C. (Seattle)
It is personally disappointing to me that the issue of the right of LGBT people to be treated equally in the workplace, while buying a house and while getting something to eat has to be an extensively partisan issue. I have constantly heard folks on the right who regularly disparage LGBT rights play the “same rights” card where they try to cover up anti-LGBT discrimination. Michele Bachmann used it and Ted Cruz used it. A majority of Americans from every state support a federal law banning anti-LGBT discrimination yet their elected leaders head right back to Washington and vote against these bills. While my home state bars services from turning me away based on my sexual orientation, I feel the anger and sadness of other LGBT people in this country who live in states that let businesses turn them away for who they are. The Supreme Court is stepping in to decide whether or not business owners, employers or real estate agents have the right to be bigots and treat their gay customers unfairly. If the Court rules in favor of the LGBT community, we will finally see the justice that we have been long denied by the religious right, but if the Court sides with the bigots, this pattern will only continue to get worse.
Diana (Centennial)
If a "differential dress code" is upheld, then women would be prohibited from wearing slacks or pants to work. Who gets to decide what is "gender appropriate"? Are priests just men in women's clothing? The Pope? Scots in kilts? Why do we accept men in dresses or skirts in some circumstances and not others? Discrimination by any other name is still discrimination. I am very wary of how SCOTUS will rule on this issue. I am not confident that the clock will not be turned back on the rights of those who are L.G.B.T. If that happens, then all Civil Rights will possibly be endangered, with Roe vs Wade most likely a casualty.
Joe (NYC)
There is a fact that must eventually be realized, even by people who have spun themselves in circles trying to be "tolerant" and "enlightened" about every conceivable group: If gender is a social construct, there is no such thing as gender. If you don't understand that statement, and the implications of it, take a while to think about it until you do. Shortcut answer: Biological sex is the only thing that is real.
rbyteme (Houlton, ME)
This utterly fails to distinguish between the body and the mind. which is not to say that the mind isn't physical, or influenced by the physical being. But you can't look at somebody's genitalia and at the same time state definitively that that person is male or female, as a visual inspection will not reveal the hormones or other biological chemicals at work that cause someone to be attracted to one gender or another. It's a clever construct, but based on a fallacious understanding of how sexuality actually works.
Skip Moreland (Baldwinsville)
@Joe And biological sex is that there are gays, transgender, etc etc. etc. Nature is not black and white when it comes to sex. It's full of grey areas. So gender is not a social construct, but one of biology where nature allows anything and has no defined sexual lines drawn at times. It is humans who decide things must be black and white while nature doesn't care about such things. They try to present themselves as being above nature, when they can never can be such. So determining by biological sex would mean accepting there are many in betweens of what you think is male and female. Nature doesn't care about the bigotry of humans. It doesn't draw lines that are black and white. It allows many different possibilities.
HANK (Newark, DE)
A win for the ADF means one religion's dogmatic version of sex will be ensconced in the Constitution full stop.
me (world)
If Zarda’s sexual orientation is a function of his sex, then certainly this plaintiff's gender identity is a function of the plaintiff's gender/sex! That should be the end of it!
Steven Pettinga (Indianapolis)
You are, who you are. If you were born female, you can be inseminated and have babies. If to were born male, you can not have a baby. Your genetic code says whether you are male or female. As a man who happens to be gay, not bisexual; I do not understand Trans people or why they suddenly became included into the "Gay" group. Where were these people 30 years ago? Gay males have worked for 40 years to become accepted as normal. I resent the inclusion of the transies into our group at this late point and time. Gays don't understand them and it has certainly set gay rights back ten years in the eyes of heterosexuals. Lesbians have always been admired, respected and lusted after. They never needed acceptance.
Skip Moreland (Baldwinsville)
@Steven Pettinga They have always been with us, but just like gays had to hide, so did they. And just like gays wanting equal rights, so do they. And genetic code is not black and white, which is why some can be born with both genitalia. Genetic code allows for almost unlimited variance. If if didn't, then those who condemn gays would be right, being gay is a choice. Now as someone who majored in biology, I know it isn't a choice because nature allows anything to be tried. It's all through the natural world where sex is mixed up.
Mike (Mason-Dixon line)
You can't make up statutory language interpretations to suit your agenda a la Eric Holder. "Sex" as defined in Title VII is based in biologically based gender. Should Congress wish to revise the statute to accommodate Ms. Greehouse's perspective, they may do so at their own political risk. This SCOTUS will have nothing to do with legislating from the bench. It's Congresses job to write law and take the political heat for their legislation. It's the courts job to enforce Rule of Law. and not to circumvent established legislative policy and practice for some group's agenda de jour.
Mnemosyne (Washington)
How do these decisions affect Trump's military policy on transgender service?
L.R. (Chicago)
If a person suspects they're trans, and goes to a psychologist or psychiatrist, and they follow professional standards of care (see e.g. Wikipedia), then the person will begin a "Real Life Experience" (again, see e.g. Wikipedia) where they live 24/7 in the gender role that feels authentic to them. If the patient's employer is unsympathetic and Title VII doesn't protect them, then the transgender person has a choice: they can be mentally healthy, or they can employed, but they can't be both. If Title VII doesn't apply to transgender people, who is sick here, the patient or the society?
JerseyGirl (Princeton NJ)
It seems to me based on your comment that the law that would apply here is the Americans with Disabilities Act.
Skip Moreland (Baldwinsville)
@L.R. The society.
areader (us)
“Title VII of the Civil Rights Act of 1964 prohibits discrimination ‘because of sex.’ Zarda’s sexual orientation is a function of his sex." A function of which sex is sexual orientation of bisexual persons?
Scott (Charlottesville)
A protected class is almost by definition a politically active group that lobbies congress successfully for that status. It is not like race, national origin, or sexual orientation are the only biologically determined, unalterable, and visibly evident traits. No one chooses their metabolism, so should obesity discrimination also be illegal? No one chooses acne, or their height, and all three of these traits are the cause of demonstrable and pronounced discrimination in employment, all are more frequent than sexual-orientation variants, and none are legally protected. I predict that the success of the LGBT communities will inspire others to seek legally protected status from the discrimination that is apparently the first impulse of many.
At least in the case of the skydiving instructor Varda, it seems like the issue at hand is not merely about sexual orientation but rather how one chooses to express one's sexuality. In reading the actual Varda case, it seems clear that people around him in the workplace had been aware for awhile that he was gay, and he liked to tell women who were skydiving that they shouldn't be uncomfortable being strapped in with him because he was gay and hence it didn't really "do anything" for him. Things boiled over, though, when he allegedly touched a woman inappropriately and then tried to hide behind the defense of, "I'm gay." But the employer still fired him. Setting aside whether not the alleged inappropriate touching happened, a critical issue here is whether or not overt expressions or discussions of sexuality (including homosexuality) are protected. I would allege that they are not, particularly as it relates to interaction with a business's customers. Varda chose to talk about his sexuality. It made the patron uncomfortable and she complained about it. The business owner fires Varda. The same chain of events would be perfectly reasonable if a straight man chose to disclose that he was only into furries or if a straight woman felt the need to disclose that she only likes black men. Varda wasn't fired for presenting as gay (e.g. listening to Michael Buble, loving Ru Paul's Drag Race, having a high-pitched voice, etc). He was fired for talking about his sexuality.
Dar Guerra (New York, New York)
The Sixth Circuit's appellate opinion in the Harris Funeral Homes transgender rights case affirmed two legal bases for covering transgender people in federal civil rights laws. First, it found that the protected "sex" category covered discrimination based on sex-stereotyping and therefore covered trans people. Second, it found that transgenderism was also a "status" on its own, which implies that a separate legal remedy scan be crafted for discrimination based on it. Since the "sex" category has evolved over half a century of hard legal to cover situations experienced primarily by females, not transgender people, and since transgender people experience kinds of discrimination not experienced by women, the "sex" category should be left to stand as a separate category. There is no need to introduce legal chaos into the "sex" category when a separate category will allow transgender law to develop coherently and with relevance to the specific problems of transgender people. The Price-Waterhouse case does not directly address transgenderism or sexual orientation: it concerns a female executive who was sex-stereotyped as abrasive and aggressive. Let the Congress decide if there is a national will to establish new protected categories in the civil rights laws; let the Supreme Court decline to expand the "sex" category, following its plain meaning rather than engaging in dangerous judicial activism.
Sam (Maine)
The common thread of these comments, which I believe to be fairly reflective of the opinions of much of America, appears to be that requiring employers to tolerate expressions of gender identity that fall outside the mainstream amount to an undue burden on the employer. That burden, presumably, is not typically a logistical burden but a psychological one. People who present in a manner “inconsistent” with their assigned sex at birth often make others uncomfortable, including employers. The only way to make progress is to change our cultural perspective as to what is acceptable in terms of gender presentation. The law both drives and reflects cultural norms. As such, these Supreme Court decisions will be enormously important for gender nonconforming and transgender people. I say this as a transgender man who transitioned 15 years ago. I work in a profession that involves constant contact with the public. I “pass” and have for a long time. No one at work is aware I am transgender. Frankly, I am not sure that I would be accepted in my job if I came out. It is a lonely existence and I live in constant fear of exposure. I am ready for a change. How about you?
Thad (Austin, TX)
@Sam I am not transgender, but I am gay, and not without sympathy to those having to conceal their identity. This is a difficult question because there isn't a scenario with a solution that doesn't bring pain to someone. On the one hand I think this transgender person should be accepted as she chooses to identify, but I also understand that customers of the funeral home might shy away due to bias. This might create a significant burden for the funeral home. I think ultimately "fault," which I use loosely, lies with the transgender woman in this particular circumstance. When an employee makes a decision that affects their ability to execute their professional responsibilities, it shouldn't be incumbent upon the employer to accommodate them. That said, I understand this line of thinking, that employers shouldn't be required to accommodate employees, could be turned against disabled people, or black people, etc., which are protected classes. Ultimately government protections would help normalize transgendered people and combat the stigma against them, which I support. I hope she wins her case, and I hope her employer doesn't suffer too much as a result. Progress is painful.
Anna (NH)
@Sam I transitioned to female via HRT a decade ago. But because my profession was funded by public taxes and I because I was was exceedingly visible to the public in my employment, I never dared come out. Ever. I hid under loose clothing and constricting underwear. To do otherwise would have meant termination by an employer not at all sympathetic to tg students using bathrooms corresponding to gender. I understand. I feel. I wish a change. But even now in retirement I fear for I live in a town deep in Trumpistan. Androgynous is the best I can be and live without fear of retaliation. We are not equal citizens.
PJ ABC (New Jersey)
@Sam. The employer isn't just considering how he himself feels, he is rightly considering how all grieving families feel. The fact that people don't pick up on this not trivial point is silly. We should be able to get the services of a funeral home without having to take into consideration this much charged transgender question. Can we grieve in peace without seeing a man wear a dress. It was completely reasonable for the owner of the funeral home to require men who look like men to wear suits, and women who look like women to wear dresses. Why would you want to confuse a grieving family? Do we really think the one we need to have sympathy for here is the one man who wants to wear a dress, or the hundreds if not thousands of clients and their guests who want to grieve in peace. Whether they want to admit it or not, transgenderism is a lightning rod, and forcing people to not think of it as a lightning rod, is a form of mind control that no one should have to tolerate.
mikecody (Niagara Falls NY)
The basic problem is that this is being decided in the wrong place. There are very persuasive arguments in favor of prohibiting discrimination on the basis of sexual orientation. I believe that this practice should be covered under law, if discrimination is to be illegal at all. The place to do so, however, is in the Legislative branch. The Dems currently control the House, and have a near call in the Senate. Legislation to either amend the Civil Rights Act or to pass an entirely new law on this subject should be passed in the House and sent to the Senate, so we can force legislators to take a stand on it. The intent of the law passed was plain, and it is not up to the Court to change that intent. It is the job of the Legislature to adapt old laws to new times and issues.
G James (NW Connecticut)
@mikecody If you read the Second Circuit decision you will see that the Second Circuit determined that Congress already passed that law in Title VII. The question for the Court in the 11th Circuit case is whether a prohibition against discrimination based on gender is encompassed within the prohibition on discrimination based on sex. Hard to see how Judge Cabranes' logic in the 2d Cir. does not apply with equal force in the 11 Cir. case.
Anshu Sharma (Ashland, VA)
@mikecody Just because the legislators who passed the Civil Rights Act did not have lesbian, gay, or transgender persons in mind does not mean that those persons aren't protected. The court has ruled that items based in modern technologies, such as digital data and modern guns, are protected by the Constitution. Also, remember this sentence from the article: "If the court were to conclude that the statute’s meaning is controlled by what those who voted for it 55 years ago thought they were doing, it would eviscerate its own precedents interpreting Title VII generously to cover, for example, sexual harassment, not only of women by men but also between members of the same sex." Laws apply in situations that legislators may not have envisioned, which is why laws have (potentially) unintended consequences. We should not be afraid to apply recently acquired knowledge when interpreting old laws.
@mikecody As discussed in the essay, the intent of the law could not have foreseen the future. Neither could the founders have envisioned the Internet. This is the constant battle between originalists and interpreters. SCOTUS sometimes has to step in because Congress is often behind the times.
bklynbrn (san francisco)
I believe it was James Madison who said, 'if all men were angels, there would be no need for government'. After battling the last five decades for equal rights, not special rights, I can not tolerate spending the next two decades of my life, if I live that long, fighting for my rights. Why shouldn't I have the same rights straight people have? Can anyone answer me?
Linda (Anchorage)
@bklynbrn. Don't despair, things are moving in the right direction. You do deserve the same rights as straight people. As a society we are now answering some hard questions that should never have been needed to be asked in the first place. We are all the same, one way or another and all deserve the same rights. Again society is moving in the right direction. Good luck.
AR (Bronxville, NY)
@bklynbrn You should have the same rights! Shame on those that don't agree.
Paul (Michigan)
@bklynbrn I'm fine with you having every right as any other employee except using the bathroom of the opposite biological sex. Otherwise, you should be treated equally as anyone else.
Lucyfer (USA)
None of these cases really has anything to do with sex or even gender, the common theme is discrimination based in religious hatred and intolerance. Sex and gender are being used as a proxy by religious fanatics to advance their agenda.
HapinOregon (Southwest Corner of Oregon)
"...gender identity wasn’t on the screen for Congress or for most of society in 1964." Times change as more of life is learned and understood. Except for conservatives, more the pity...
Bob (Nyc)
The progressive view about sex, gender and sexuality is that these terms are almost completely distinct. According to this view "sex" is a very limited term that is based exclusively on biological differences between males and females. By contrast "gender" and "sexual orientation" are more of a societal construct combined with personal identification and don't tie strongly to "sex" (i.e., one born as as a male/female can identify as either a man or woman and can prefer either men or women). This view is necessary if we're to retain some term that differentiates between people on the basis of the biological characteristics attributable to males and females while still embracing the differences in terms of identification that we all ought to embrace. By contrast, Carbanes makes the rather old-school argument that "sexual orientation is a function of ...sex." That may have been the thinking long ago, but not anymore. Although there is some relationship between sex and sexuality, most progressives would not go so far as to say one is the function of the other. If the question/effect were different, I imagine most progressives would even find this notion offensive. I don't approve of people being fired for who they are, but the law as written simply does not create a protected class for transgender or homosexual people; rewriting the statute to broaden the definition of "sex" will have downrange consequences that are hard to predict; elected politicians should own that decision.
@Bob Unfortunately, look how long it took to repeal Don't Ask Don't Tell and the Defense of Marriage Act. It took SCOTUS, much to the consternation of some, to narrowly use the constitution's 14th amendment to install marriage equality. Justice Kennedy will be missed on this case. Hopefully Chief Justice Roberts will fill his shoes.
Kevin T. Keith (Queens)
@Bob I agree with your comments about the distinction between sex and sexual orientation; Carbanes, while to be commended for his insight that Title VII covers both, is unfortunately wrong that one is "a function of" the other, and thus wrong in his deduction as to why both are protected. But that does not mean Title VII should not be read to cover sexual orientation or sexual identity. The writers of the statute intended to keep bigots from meddling with people's private lives on grounds related to sex. They did not have a language, 55 years ago and 5 years before Stonewall, for fine distinctions between sex, gender, sexual identity, gender identity, and sexual orientation (and would likely have been bewildered by marginal cases such as intersex and non-binary identity). In the same way that many laws referring to "men" were simply interpreted to cover men *and* women, a broad prohibition on "discrimination because of sex" can easily be understood to prohibit discrimination because of sex *and* sex orientation *and* sex identity.
Boltar (Cambridge, MA)
A quaint if unrealistic view. Sex comprises not just a handful of discrete organs, but also pervasive hormonal distinctions and accompanying brain hardware differences. We know biological construction “errors” lead to all kinds of physical differences; we have long abandoned torturing left-handers for their “wrong-thinking” and subjecting babies with birth defects to infanticide. The idea that the brain is somehow immune to such biological accidents is just more archaic hubris, or the almost charmingly naïve view that “God wouldn’t make anyone that way.” Some people are born with sexuality at variance from their outward apparent sex, just as some people are born without wisdom teeth, and some people are born left handed. It’s all biological. Get over it.
candideinnc (spring hope, n.c.)
I will avoid the details of this article and only make the observation that if the Court decides this case in favor of those who wish to carry on their discrimination against LGBT people, not only will the gays suffer; so will society. And regardless of their rationalizations employed for permitting discrimination, the reputation of the Court will also suffer.
Jim S. (Sarasota)
I don't understood anything in the law that allows discrimination on the basis of sex solely because the sex of the person has changed. Discrimination on account of gay behavior is not so clear, though I think that ought to be illegal as well.
Jean (Cleary)
It is not Progressive to accept how people identify themselves. It is human. Why do people think that have a right to discriminate against anyone who is not like them. It is too bad that this case is even going to court. When will people stop foisting their beliefs and prejudices on those they feel qualified to judge. Grow up!
mike (nola)
@Jean It is a tenant of human nature to congregate with those like ourselves and reject or at least be wary of those we see as "other' than like ourselves. Recorded history demonstrates this time and again. People choosing to favor those like themselves and rejecting those that are different or "other" than themselves. It is a sad but true reality. Humans naturally discriminate. Advances in society are imposed limits on that natural discrimination tendency, not changes in human development.
Jean (Cleary)
@mike It has been my observation that discrimination is passed down through generations. It is a learned behavior.
dgm (Princeton, NJ)
Can an employer rightly fire someone if they choose to change religions? If I were raised a Catholic, but then converted to Judaism because I discovered it to be the true path, that I was “really” a Jew all along, can I be fired by my anti-Semitic employer on the grounds that his customers are all Muslim and that it’s bad for her business to have Jewish employees? Certainly religious converts outnumber the trans population; indeed, Americans change religions as often as they change hairstyles. In this context, religion=faith orientation just as much sex=sexual orientation.
Mark (New York, NY)
Gosh, if Zarda's sexual orientation is a "function of" his sex, then either all men are gay or all men are straight. Thanks for that lucid explanation, Judge Cabranes and Ms. Greenhouse.
mike (nola)
@Mark The Hobby Lobby case would strongly indicate the religious employer could do that.
Paul-A (St. Lawrence, NY)
@Mark You're misunderstanding the point that Cabranes is making: He's not saying that all men are in actuality either straight or gay. Rather, he's saying that the defendants are defining the "function" of sex in a narrow/binary way, and that because the defendant's definition is based on the plaintiff's gender, discriminating because of it is illegal.
Mark (New York, NY)
@Paul-A: It is a sad commentary on the quality of the Times's coverage of this that Greenhouse lets Cabranes's argument go through uncritically and with apparent approval. What comes through in the article is that if something is vaguely related to sex then discrimination on the basis of that is discrimination on the basis of sex. But that is a fuzzbrained argument. Somebody who hates gay men and gay women equally, but loves straight people, discriminates on the basis of sexual orientation, but not sex (or, following you, gender).
areader (us)
"Zarda’s sexual orientation is a function of his sex." Could please somebody enumerate functions of sex?
Federalist (California)
@areader Your use of the wrong meaning of function shows why the Court is so careful to ensure that they define terms correctly.
Paul-A (St. Lawrence, NY)
@areader You're misunderstanding Judge Cabranes' use of the word "function" in his statement. He's not using "function" in its common meaning of a thing's "intended purpose." Rather, he's using the word "function" in its logico-mathematical usage, i.e. that for any factor put into a function (situation), there's only one possible (acceptable) output. In other words, if the "function" under questions is "X is attracted to men," then using the common parlance definitions of "straight" versus "gay," if the gender of X is female, then the outcome of the function is "straight"; if the gender of X is male, then the outcome of the function is "gay." This indicates that the function of "defining person X's sexual orientation" is predicated on whether person X is a female or a male. i.e. sexual orientation is defined by sex. Thus, firing (discriminating against) a male (Person X) who is attracted to men is equivalent to discrimination on the basis of gender, because if Person X had been a female (and thus match the singular "function" (definition) of sexual attraction), Person X as a female wouldn't have been fired. (I'm not implying that bisexuality or asexuality shouldn't be included in this discussion; I'm just explaining the context of Judge Cabranes' use of the word "function" as simply as possible.)
areader (us)
@Federalist, What's the right meaning of "function" in this case?
Tommy Obeso Jr (Southern Cal)
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and six associate justices, any five of whom shall constitute a quorum; and for the purposes of this act there shall be appointed an additional associate justice of said court. — Judiciary Act of 2021 § 1 If we get control of the Senate the House the Executive we need to do this: get rid of Gorsuch and Kavanaugh. Restore our Supreme Court to the Constitution, to the people in the middle, and to the poor, the homeless and the mentally ill, the least among us. We need to erase the evil deeds done by MCCONNELL and his party of NO. We need to get rid of FOXNEWS https://www.bbc.com/news/entertainment-arts-41887613 Britain outlawed TUCKER CARLSON and his lies, WHY DON'T WE DO THE SAME?
William Case (United States)
Congress should protect gay, lesbians and bisexuals by revising Title VII to prohibit job discrimination based on sexual orientation as well as sex. Congress should expand the American Disabilities Act to explicitly protect persons diagnosed with gender dysphoria against job discrimination. (One could argue that the ADA already covers transgender persons.) But at present, Title VII doesn’t protect persons from job discrimination based on sexual orientation or gender identification. Title VII became law as part of the Civil Rights Act in 1964, at a time when same-sex acts were criminalize by both federal and state laws. As late as as Bowers v. Hardwick (1886), the Supreme Court upheld the constitutionality of a Georgia sodomy law with references to homosexuality. In the majority opinion, Justice Bryon White held that the Constitution did not confer “a fundamental right to engage in homosexual sodomy.” Bowers v. Hardwick was not overturned until Lawrence v. Texas in 2003, when five justices held sodomy laws violated due process guarantees, and a sixth held it violated equal protection guarantees.
Nadia (Olympia WA)
Will any society ever be totally just? Age discrimination is probably far more prevalent in the work force these days than anti-LGBTQ bias, but the sexual orientation question takes all the oxygen out of the room. Rejiggering all the hinges and levers of the common mindset will take time. A generation will die off. Things change. Good luck everyone.
mike (nola)
@Nadia people cannot legally be fired just because of age. people cannot legally evicted just because of age. LGBTQIA folks can have both of those happen in a majority of states.
Nadia (Olympia WA)
@mike Discrimination does not necessarily manifest itself in firing or being evicted. It comes in many forms. If Stephens wins her case and keeps her job, what will her work day be like?
Mystery Lits (somewhere)
Next on the oppression olympics.... people who wear furry costumes sue for the right to wear their furry costumes in the works place because furrys rights are human rights. 30 mins later people who wear iguana costumes in the work place sue to wear their costumes because they identify as an iguana.....
mike (nola)
@Mystery Lits nope next up in the oppression olympics are the Republicans deciding that if you did not vote for them, you never get to vote again.
Louise Sumrell (Greenville, NC, USA)
@Mystery Lits disengenuous and ridiculous argument...
Brenda (Morris Plains)
OF COURSE a statute’s meaning is “controled by what those who voted for it ... thought they were doing”, as they the expressed in their language. Such is not merely a fundamental canon of the law, but essential when reading the English language. Unless one believes that the Flintstones were adherents of alternative life styles when they sang about having a “gay old time”, one has to accept the meaning of that phrase in the context of its use by the people who used it. That a Clinton-appointed politician concluded, nonsensically, that “sexual orientation is a function of (plaintiff’s) sex” should surprise no one. Leftists always reason backwards from the Politically Correct result. Sex is a simple, immutable, binary, biological construct. Plaintiff did not suffer because he’s a man; that should be the end of the analysis.
mike (nola)
@Brenda you are not only grossly mistaken you are harming your own ostensible view. If what you held is true then NO religion could receive or participate in any Federal Funding scheme what so ever. They would also have to pay taxes on property and tithes would be counted as income.
Louise Sumrell (Greenville, NC, USA)
@Brenda. Things change. Nothing stays the same. Culture/society evolves. It is, however, always held back by the simple-minded fear of change, by the people who are terrified of any upset to their unbending sense of 'the way things are', no matter how beneficial that change is for others... Fear robs people of compassion, indeed, their very humanity. These poor people are trapped in an irritable state of mind, dismissive of others suffering,(unless they are "one of us"). The saddest part is that they don't even realize that their discomfort is caused entirely by their own fear... The cure? Peace Love Kindness Respect (the more you give, the more you get 😍)
Julius (Maryland)
@Brenda, also, your understanding of biology is flawed. In Nature, sex is far from an immutable, binary construct. Examples abound of parthenogenesis (reproduction without sex) and of sex-shifting based on environmental changes.
Steve Cochrane (NYC)
My concern is why is this is taking so long? This discrimination is clear based on Title VII of the Civil Rights Act, right? Right? If the new GOP SCOTUS rules in favor of the business, the next SCOTUS case will be about a woman being fired because she became pregnant. Or, a black man being fired because the company wasn't comfortable with black men. It would start the rollback of American Civil Rights, bit by bit. I guess we shall see...
Sam (NJ)
Poor Judge Cabranes. He'll never make the Supreme Court with nonpartisan and intellectually transparent rulings like that! Thomas would be appalled that Cabranes didn't even consider what the Founders thought of sexual orientation
Ross Salinger (Carlsbad California)
I have tried and tried but it is simply impossible for me to understand how anyone with an IQ above imbecile would think that it makes sense - common included - to discriminate against some person who decides for whatever reason to wear a dress to work. I have no idea if anyone in congress cared about the LGBT community back in 1965. It beggars belief that, in the fact of real science, anyone would actually fire someone changing their gender. It is further astounding to the point of disbelief that a Christian organization can endorse such a position. Nothing could be farther from Christ's actual message to humanity. What a bunch of hypocrites they must be.
Amy (Brooklyn)
@Ross Salinger The job of the courts is to apply the laws not to change the law to whatever they would like it to be.
Stephen (Wilton, CT)
@Ross Salinger I don't think the funeral home owners decided to fire the cross-dressing funeral director purely out of the desire to "discriminate against...a person wearing a dress." Instead, I imagine they gave it considerable thought and came to the reasonable conclusion that the funeral director's wardrobe choices were antithetical to the discretion one should expect when engaging a funeral director. After all, would you hire a funeral director who showed up to meet with you and your family (repeatedly) while wearing his best weekend warrior gear (e.g. Bermuda shorts, Hawaiian shirt and flip flops)? Or do you discriminate against people who wear Hawaiian shirts?
Tom Graham (Kalamazoo, MI)
I think the SCOTUS will surprise everyone. The science on sexual preference indicates that it is caused by epimarkers either passed form father to daughter, mother to son, or some pre-pubescent trauma messing with things, making homosexuality a persistent state. The science behind transgenderism is that it is a manageable mild psychosis (like biting your fingernails) caused by a million different things, which has the potential of becoming a serious mental illness (gender dysphoria) which has a suicide rate of 40%. You cannot fire someone for a health condition, be it physical or mental. That would be like firing someone because they are disabled. you need to make reasonable accommodations. So, I believe the SCOTUS will find that transgenderism is a metal non-debilitating disability, not a sex, but you still can't fire someone for a disability no matter how that disability makes them look. However, they may find that homosexual people can be fired by companies whose owners have strong religious values. OR they may make the better decision to acknowledge that homosexuality is part of the way your DNA expresses itself, you cannot pray the gay away, and consider being gay a non-debilitating disability as well and therefore exempt from being fired for it.
Sterling (Brooklyn, NY)
I just don’t see how a Court dominated by Republicans will advance gay rights. Homophobia is one the foundational pillars of the GOP.
Observor (Backwoods California)
Before the European invasion, Americans generally recognized gender fluidity and honored men living as women AND women living as men. Time to get rid of those tired old European 'morals' and return to our American roots.
DL (Albany, NY)
First, I think the sneaky way in which transgendered people have crawled under the "LGBT" umbrella is getting a lot of pushback from the right. Ironically, now that we're being schooled that sex, sexual orientation and gender identity are all different things, Judge Cabrane's analysis may no longer hold.
spiderbee (Ny)
@DL Trans people have been under that umbrella a long time -- perhaps you've heard of Stonewall?
Jay Orchard (Miami Beach)
Let's say I, as an employer, am a non-practicing Jew and I have an employee who is a non-practicing Jew. I find out that the employee is married to a non-Jew. I am against all marriages between Jews and non-Jews for social or other non-religious reasons, and I fire the employee because of his marriage. For the same reason, I also fire an employee who is not Jewish because the employee is married to a Jew. Are we going to say that that is religious discrimination because if the employee who is married to a non-Jew had not been Jewish, I wouldn't have fired him? If the answer is no, then firing someone based on their sexual orientation likewise is not sex discrimination.
Steven Harrell (DC)
@Jay Orchard The answer is yes, that is religious discrimination. And it's already been adjudicated as such. By the same vein, firing a white woman for marrying a black man is racial discrimination... and it's absolutely illegal under the law.
AJ (Midwest.)
@Jay Orchard. That’s pretty easy. Under the law you would be firing the person based on a consideration of their religion. Yes you would have committed a Title VII violation.
mike (nola)
@Jay Orchard complex and convoluted straw man argument. Except as outlined in law and Hobby Lobby, a public employer cannot fire someone based on religion. A religious organization has the right not to hire a Jew to say be a Catholic priest or even as church secretary. But that is about the legal limit to allowed religious discrimination in employment.
Alan (Queens)
Religion is a choice; whom you’re attracted to is NOT. I knew at age seven that only other males caught my fancy. Females never did and I’m 59 now.
Michael Ryan (Palm Coast FL)
Thank you for this splendid and thorough factual analysis of this issue. Michael Ryan
Observor (Backwoods California)
One has to wonder who could possibly be the swing vote in favor of anyone who is not 'straight.' Any of the conservative 5 have a gay or transgender family member?
mike (nola)
@Observor The best hope I see is that John Roberts is very aware of his place in history and he does not want to be seen as a miserly bigoted partisan.
scotteroo (Bemidji)
Unfortunately, I fear the court will determine the law based on who the bigots are, in terms of a fraudulent interpretation of "religious liberty," not the self-identity of those being discriminated against.
Thomas Murray (NYC)
My guess is that SCOTUS's fab-five "conservatives" will find not only that L.G.T.Q. employees CAN "be fired for who they are" AND that they should not be counted in the coming Census if that's what Wilbur thinks. (That would be the lying and tax-cheating Wilbur Ross of the Weehawken and North Bergen, NJ Rosses.)
LauraF (Great White North)
I cannot believe that this is even being considered. The US seems to be going backwards. It's terrifying.
DKSF (San Francisco, CA)
A comment I read for another article on this seemed hard to argue with and probably in line with the judge at the end of this piece. If a woman tells her co-workers she met a man, started dating him, became intimate and eventually married and raised a family, her company would be happy for her. If a man did the same thing and got fired, he could get fired. The only difference is that he is a man having a relationship with a man and not a woman. He is being discriminated against solely because of his sex. Similar arguments can be made for a transgender person. They are not being fired because of their actions, just that they are the “wrong” sex.
Mark (New York, NY)
@DKSF: It's a sophistical argument. The man is not being discriminated against on the basis of sex. If he were, then the company would have no problem with a woman having a relationship with whomever she pleases; it would be treating men and women differently in a systematic way. But if it would fire a lesbian the same as a male gay person, then it is discriminating on the basis of sexual orientation, not on the basis of whether they are male or female, that is, sex.
mike (nola)
@Mark Orientation is part and partial of "sex" in terms of the Title VII rulings. Straight people by definition don't have same-sex relationships of the physical type. The sex of the parties in a marriage are orientation based and if you discriminate against LGBT people based on whom they are married too that is a form of sex discrimination.
Outnproud (NC)
If Title XII did not intent "sex" to include the rights of LBGTQ citizens then the second amendment should include only muskets, not assault weapons.
Sarah A (Stamford, CT)
Legislation and Amendments aren't the same.
Thomas (San jose)
“Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.” Judge Cabranes concluded: “That should be the end of the analysis.” Until Chief Justice Roberts decide the issue, there is no end to the analysis. In these cases and in future cases to come, the Chief is and will be the “Decider in Chief”. His dilemma is both immediate and chronic. In 4/4 ties will he give priority to the court’s reputation for claiming that it is not political or will Roberts be true to his conservative reputation and the conservative Republicans who appointed him and vote forever with the four other conservative justices. His agony will likely never end in this hyperpartisan era of cultural evolution.
the dogfather (danville, ca)
Consistent with Judge Cabranes' analysis, try out this hypothetical from the Macy case: If a boss has no problem with Catholics or Jews, but fires anyone who converts from one to t'other faith, that is clearly discrimination "because of religion." If that same boss has no problem with men or women, but fires anyone who converts from one to t'other identity - how could that possibly Not be discrimination "because of sex?"
mike (nola)
@the dogfather another straw man argument just more absurd. The cases are about firing someone because of their sex, not their religion.
Skip Moreland (Baldwinsville)
@mike Which is illegal under the law.
Blank (Venice)
I write this whenever Ms. Greenhouse allows us to read her enlightening scribbles on the $COTU$; This is what makes the subscription to NYTimes.com that I just renewed today worth every single penny. Thank you for writing and please do so more often.
BKLYNJ (Union County)
Oh, how I yearn for a time when the plain letter of the law meant something to the SCOTUS majority, even when it conflicted with its partisan political agenda.
mike (nola)
@BKLYNJ those pesky conservative justices are really partisan hacks. more so thanks to the trump appointments
MichinobeKris (Los Angeles)
"[T]he justices are capable of taking great care not to permit overly zealous advocacy to back them into a corner." However, when they have been appointed and railroaded in precisely BECAUSE OF their zealous advocacy against certain positions, they can be relied on to view said corner as the gate to freedom: Freedom for a certain flavor of Christianity to discriminate at will.
Nick (California)
Thanks Linda Greenhouse for your always insightful and intriguing analysis on issues relating to the Supreme Court. With respect to this current set of cases, you've proven once again that you can provide a deeper and more informative background than almost anyone else writing about the Court, its cases, and its inner workings! I miss the days — now long past — when I was at Columbia Law School (in the mid-1990’s) and you provided regular analyses in the pages of the NYT about Supreme Court cases (including both landmark cases and those that were merely interesting). As a law student, I became hooked to your writing, and your column on the Supreme Court was essential reading for all of us. I continued reading your column regularly for years afterwards. While others have now taken on the daily Supreme Court column in The Times, I’m so glad that you are still providing your astute comments to help clarify and cut through some of the mysterious fog that often shrouds the Court’s actions and reasoning. Here’s hoping you can continue this valuable analysis for many more years to come! From your secret intellectual admirer.
Keith Griffin (Dallas)
Linda, I think it is also helpful to remember that, by most accounts, Jerry Falwell's Moral Majority was established in response to the Supreme Court's 1971 holding in Green vs. Connally: that the IRS could deny a tax-exemption to a school that promoted racial segregation based on religious beliefs, because that segregation violated public policy. These current cases regarding LGBT rights, and the various state statutes being passed purporting to protect bias based on "genuinely held religious beliefs", are, I believe, an attempt to set a precedent for ultimately overturning Green, and allow discrimination along racial lines, if that is the "genuinely held religious belief" of the acting party.
John-Manuel Andriote (Norwich, CT)
How said that in the "Land of the Free and Home of the Brave" we have to ask the Supreme Court to decide whether an American citizen can be fired from his or her job because s/he is not heterosexual or someone's idea of what a "real" woman or man should look, dress, or act like. This is not "equal justice under law." It is about deciding who is worthy of equality, and who is not. Let's hope the court rules for the citizens and gives employers a reason to get over their prejudice and discomfort and accept that all of us truly are equal. If you need to fire someone, do so based on their work--NOT their sexual orientation or gender identity.
Pataman (Arizona)
I guess I just don't understand what the problem is. There are all kinds of laws about "rights.' Women's rights, LGBT rights, etc. Whatever happened to HUMAN RIGHTS? We are talking about human beings. We all have rights given to us by the U.S, Constitution. It doesn't say "except for the LGB people." I have one question to ask those who discriminate against LGB people: In what way does a persons sexual orientation affect your life? If you can answer that please let us all know.
PJ ABC (New Jersey)
@Pataman. What about the rights of the store owner to present as a traditional institution where grieving families can go for solace, and not be confronted by someone's "pride" at presenting trans. If they have a right to present as whatever gender they want, why can an institution that wants to present as traditional not present as traditional? It's hypocritical. I think this could be a violation of the rights of both the owner of the business in terms what kind of image he wants to present to grieving families, and the rights of grieving families not to have to consider transgender issues while grieving over the death of a loved one. This is a lightning rod topic. Why would a funeral home director want his grieving families to have to think about transgenderism when all the family wants to do is grieve. People know that funeral home directors are not trying to draw attention to themselves. A man in a dress does the opposite. I mean, this person complaining about being fired while transitioning, is him/her simply being a cry baby. This is not a good start in terms of the relationship between trans people and the mostly cis world, to use their language. After the trouble he has caused he does not earn my respect of calling him a her. I reserve that respect for people not trying to inconvenience grieving families or honest business people. This is in no way like the lunch counters in the south, or a ban on hiring a certain race or religion. This is nonsense.
spiderbee (Ny)
@PJ ABC Yes, the right to optimal marketing should always trump the right to put food in one's mouth. Long live capitalism!
Mike (NY)
Again traditional is fine, bigotry is not.
K Henderson (NYC)
I enjoyed Greenhouse's detailed essay. The problem for the SC is that as an institution it is undermining itself with its constant 5-4 decisions on anything that has to do with civil liberties.
Laura (CA)
Great writing, thank you. I look forward to seeing the decisions.
Maybe. This analysis is good. And interesting. But is there really good reason to believe this won't wind up 5-4 with the 5 and the 4 doing jumping through whatever hoops they need to to justify their partisan vote?
@SJG If they side with precedent, it should be 9-0.
The Buddy (Astoria, NY)
When a company enforces their staff member's preference in romantic attachments or personal identity, what is the relevance to the company's business model?
Steve (Santa Monica)
@The Buddy When a company fires a staff member because of their preference in romantic attachments or personal identity, what is the relevance to the company's business model?
Rich (St. Louis)
Fantastic analysis. Wrong conclusion. This SCOTUS is partisan, through and through.
skeptonomist (Tennessee)
"Zarda’s sexual orientation is a function of his sex". How does Cabranes know that sex, which is presumably still a physical characteristic, determines Zarda's sexual orientation? If the two were coincident there would apparently be no problem. Finding for Zarda seems to involve an implicit redefinition of sex as an inclination, influenced presumably by societal factors, rather than a physical or genetic characteristic.
Linda (Massachusetts)
@skeptonomist I don't think you realize that the very definition of sexual orientation is connected to one's sex, so Cabranes was correct. Sexual orientation is defined as " a person's sexual identity in relation to the gender to which they are attracted; the fact of being heterosexual, homosexual, or bisexual."
Mark (New York, NY)
@Linda: Yes, well, discrimination on the basis of X and discrimination on the basis of something "connected," or somehow related, to X are not the same thing. By your argument, discrimination against child molesters is age discrimination.
@skeptonomist... If our Courts do not understand the absolute difference between sexual-orientation and gender-identity... what hope does the LGBTQ community have? Sex is a matter of anatomy. Gender is a matter of consciousness. Sexual orientation is absolutely unrelated to gender-identity. They have nothing to do with each other.
james (washington)
One could easily argue that '“because of” an individual’s sex" means his/her male or female sex, but not some specific sexual practices (such as homosexuality or other variations). I guess that fairly obvious possibility eluded Judge Cabranes. [That is not to say that discrimination based on sexual orientation/practices is a good thing -- just that prohibiting such discrimination is not clear in the text of the statute and was likely NOT intended by the legislators.] In the case of people who decide that their sex is not that which nature gave them, it is even harder to say that they are suffering discrimination "because of their sex" or that the language of the statute covers them or that the legislators intended to cover them. Males who think they are females and females who think they are males are likely treated the same way. [Again, that is not to say that discrimination based on an individual believing he/she is of a different sex than that given by nature is a good thing -- just that prohibiting such discrimination is not clear in the text of the statute and was likely NOT intended by the legislators.]
Linda (Massachusetts)
@james I don't think that one's sexual orientation can be considered as separate from their sex. Just by definition, sexual orientation is "a person's sexual identity in relation to the gender to which they are attracted; the fact of being heterosexual, homosexual, or bisexual." So I think Cabranes correctly delineated this. One's sexual orientation is also not exactly the same as one's sexual practices, much as you are trying to reduce it to that. Also, it is widely shown that gender is not a binary construct. So while I agree that the Court must now determine how Title VII encompasses all of this, I don't agree with the basic information underlying your assumptions.
Mark (New York, NY)
@Linda: John is male and straight, and Joe is male and gay. What do they have in common, and how are they different? If you think, what they have in common is being male and what they differ in is their sexual orientation, then, contrary to what you said was impossible, you have considered sexual orientation "as separate" from a person's sex (in the sense that, arguably, is the meaning in Title VII).
Max Lewy (New york, NY)
@james So if an afro american who has a white and a black parent decides tbat he is white, and is victim of discrimination because he or she believes that he is of a different race { white ]than that given by nature [black], then he is wrong and should not complain of such a discrimination?
B (Los Alamos)
I think that specific rights are in conflict with equal rights. I understand that extra legislation is often needed and that it makes perfectly good sense. However, such legislation explicitly highlights the very inequality we are trying to prevent discrimination against.
W.A. Spitzer (Faywood, NM)
"If the court were to conclude that the statute’s meaning is controlled by what those who voted for it 55 years ago thought they were doing,"....That might prove to be interesting. If that were the case perhaps we could get the Court to review the intended interpretation of the Second Amendment.
Mark Thomason (Clawson, MI)
@W.A. Spitzer -- "perhaps we could get the Court to review the intended interpretation of the Second Amendment." That is what happened. You apparently don't like that.
W.A. Spitzer (Faywood, NM)
@Mark Thomason.....If you care what the meaning of "a well regulated militia" was intended to be, and why it is included in the Second Amendment, read The Federalist Papers 29 by Hamilton. My comment was to suggest that if some Court decisions are too be made by the the original intent at the time they were written, then perhaps all Court decisions ought to be made that way.
Lew Fournier (Kitchener)
The merits of the case aside: What on Earth is going on when one group thinks it suffers because another group has rights equal to its?
AMH (Boston)
I don't advocate for one side or the other on this matter. However, Greenhouse's use of the quote from Judge Cabranes is unpersuasive: “This is a straightforward case of statutory construction,” Judge Cabranes wrote. “Title VII of the Civil Rights Act of 1964 prohibits discrimination ‘because of sex.’ Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.” It is flawed logic to assert that "sexual orientation is a function of his sex." That's no different than saying that "wearing a dress is a function of her sex" or "wearing a tie is a function of his sex." That's precisely the logic these cases are intended to disprove, yet it is being used to support these plaintiffs. The logic did not make sense in the case before Judge Cabranes and that logic likewise makes no sense in the three cases now before the Supreme Court.
Dan G (Washington, DC)
@AMH You make a wrong assumption. Selecting a tie is a choice; sexual orientation is not a choice. It is how one is oriented as to one's sexual interests because it is a physical characteristic of that person (inherent). It is the same for homosexual and heterosexual. In neither situation is it a choice. It is a choice in one selecting a tie, belt, pair of shores, etc.
AMH (Boston)
@Dan G, I will stipulate for argument's sake that one's sexual interest (homosexual and heterosexual) is inherent or inborn. But that just re-states my point in different terms. Judge Cabranes' statement that sexual orientation is "a function of his sex" would suggest that males (one sex) are attracted to females and females (the other sex) are attracted to males. Cabranes' simple logic actually leaves out the reality that one's sexual orientation is in fact a function of something OTHER THAN their biological sex. My only point is that Cabranes used a false logic to justify his opinion.
W.A. Spitzer (Faywood, NM)
@AMH....What is your definition of biological sex? What is sexual orientation if it is not biological? You might argue that biological sex is physical in its nature; and would argue back that neurotransmitters and hormones which determine orientation are every bit as physical in nature (they also really exist).
Blackmamba (Il)
So much of the dialogue on LGBTQ rests in faith. And six of the Supreme Court of the United States are Roman Catholic. While three of the justices are Jewish. Around 52% of Americans are Protestants, 24% are Catholic, 10% are agnostic/atheists and 1.8% are Jewish. How many of the Justices are LGTBQ? While there are only two naturally procreative DNA genetic human genders, sexual identity is determined by development of the brain and the genitalia along with the physical and physiology in the womb that do not always match. That is not a choice. And it is not unnatural. Too bad Americans are so ignorant, illiterate and stupid when it comes to science in general and biological science in particular.
E (Pittsburgh)
@Blackmamba "While there are only two naturally procreative DNA genetic human genders..." Actually, not true. there are plenty of variations that naturally occur beyond the "normal" XX and XY. XYY, XXY XO, etc. There is a variation of fertility among and within the different sex chromosome configurations, just as there is variation in fertility among those with XY and XX chromosomes.
Amy (Brooklyn)
@Blackmamba The law doesn't say you are protected from discrimination based on your gender identity. It seem pretty clear that biological sex was intended.
Diane (Nyc)
@Blackmamba You don't have to be LGTBQ to understand that we are all humans and must be treated equally. You don't have to know anything about science to know that we must treat our fellow humans with respect. I know "ignorant" and "illiterate" straight people who are kind and would not discriminate against LGTBQ people because they see LGTBQ as just people. This blind hatred of the LGTBQ community by right-wing politicians and those who align themselves with them is something more insidious than mere ignorance. It is evil. I share Linda Greenhouse's optimism and hope that evil will not win out.
No big deal (New Orleans)
Don't ask don't tell should be expanded to include everyone. No one cares if you are a homosexual or a heterosexual, but if you start talking about it in a professional setting, you should be shown the door. Keep "who you are" to yourself in all professional settings period.
Dominic (Astoria, NY)
@No big deal Okay, fine. So no one talks about their families at work, no one talks about their partners at work, no one talks about the trips they took on vacation lest it mention a spouse or partner, no one reminisces about their past to create moments of camaraderie lest it mention a relationship. I think you're having a hard time removing your thoughts about sexual activity from the reality of personal relationships.
elotrolado (central california coast)
@No big deal Simple solution, yet unrealistic and inhumane. The workplace is the one place where many of us spend the most time each week. We naturally talk about our relationships: who we're dating, our spouses, children etc. I wonder if those who share your views are simply terrified of and hiding from their own same sex attractions. There is no shame in any of this. We can accept all of us.
Jeff (New York)
@No big deal People spend half their waking life at work with their coworkers. Do you seriously expect people not to talk about their spouses and children at work?
Cate (Minneapolis)
As a trans woman and a lawyer, I am saddened by the felt need among those commenting to define my existence as that of a man in a dress. But that's okay, as I understand I'm different than most, and some people just don't get it. I'm more saddened, though, by those who feel my transition is somehow about my "private life" and shouldn't have to be dealt with by any employer or those I encounter in daily life. I wake up each to 1/3 of the country seeking to legislate me out of existence because they've convinced themselves Jesus wants them to. Sounds a bit un-Christian. If I can handle that day after day, these terrified little men can handle seeing me in a dress every once in a while.
Fred Wild (New Orleans, La.)
@Cate But how do you know you're a woman? All you know is you are uncomfortable as a man and that you feel like you think a woman feels. In truth, you don't know how a woman feels, thinks, or acts because you are not a woman. You can no more be a woman by feeling and choice than you can be a fish or a tree. Human femininity is not specified or explained. It is not something you can wear like a coat. If you could, you could be a particular woman, such as Michelle Obama, by feeling and by choice to be so. Every woman on earth is insulted when a man presumes to know female nature and claim it for himself.
John (Rhode Island)
@Cate Hello, I wonder what people would call a male person in many parts of the Middle East wearing man dresses, the traditional "robes" worn by males over there. Or the less formal dish-dash. Both are essentially dresses. There are many in Brooklyn. What would the courts and bigoted opinions say about them? They would be sued so fast and furious they would be dizzy for the rest of their lives.
Madeleine (MI)
@Cate Hi Cate, I’m trans too. This is an excellent comment. What I appreciate most is you are helping non-trans people to understand that we are not ‘hobbyists’, but humans who live and present the way we identify 24/7. Some people still do not believe that trans folk are real and sane, regardless of any evidence that can be presented. Not a surprise, seeing the continued use of negative racial, ethnic, sex, and other stereotyping. Regarding religious ‘justifications’. We simply cannot be held hostage to the imaginations of religionists, especially since religions and sects take different views on this and many ignore their teachings anyway. Better to have secular arguments in this case, so we fight real things, and not imaginary friends.
Terry (Iowa)
Those who have problems with LGBT rights, should read Patricia Churchland's, Touching a Nerve: The self as brain, to learn how the masculinization and feminization of the brain begins in the prenatal brain. Knowledge sets us free.
George (NYC)
Life was so much easier when people just pick a side. I could care less as to your sexual orientation . It’s your business not mine.
James (Virginia)
Is it sex discrimination to have only female patients in a clinical trial for a drug for ovarian cancer? Is it sex discrimination to say that men cannot wear dresses in the workplace? This bizarre reading of discrimination law only makes sense to those who are ideologically committed to destroying the public recognition of the different and embodied natures of men and women.
CC (California)
Those two examples are entirely different. One is a biological yes or no. The other is simply dress codes. Both are currently permissible.
Coopmindy (Upstate NY)
@James What are "embodied natures"?
Richard (Madison)
If we have learned anything since John Roberts took over as Chief Justice, it's that for the Court's Republican appointees, there's no longer any such thing as a "straightforward case of statutory construction," and that the Court's own precedents don't mean squat when they wish to reach a preferred result. (See: DC v. Heller, Shelby County v. Holder, Citizens United, etc. etc.). No one should be surprised if the Republican Five find a way to blithely disregard both Judge Cabranes interpretation of TItle VII and the Price Waterhouse decision to deliver a result that will please the social conservatives who so clearly view the Court as their best hope for stopping the advance of LGBTQ rights. I will be surprised if they don't.
Mmm (Nyc)
Obviously the author is incorrect to assert that under ordinary uses of the English language "sexual orientation" is encompassed by "sex". Today as in 1964, sex means biological sex. Whether at the DMV or at one of these now ubiquitous gender (aside: curious use of the term) reveal parties. And when half of the state passed anti-gay discrimination laws over the past 2 decades, what words do you think they used in their legislation? Of course they used the express term "sexual orientation" because that is understood to mean something quite distinct from "sex". When legislatures draft laws, they choose words very carefully and those choices should be given effect by judges. Now I understand that sexual orientation is a function of biological sex, the same as "stripes" are a function of "color". But if a zoo accepts yellow and white tigers so long as they have stripes, is it discriminating based on the tiger's color or are stripes a distinct relational characteristic that necessarily refer to color but are something else entirely?
Dave (Rochester, NY)
Funny how biological sex, gender, and sexual orientation are either separate and distinct from each other, or intimately related to each other, depending on what best suits one's political, ethical, or other agenda at the moment.
Madeleine (MI)
@Dave Political agenda? Or Science, History, and Anthropology?
Steve (Mamaroneck)
I have yet to hear anyone discuss the idea of whether or not it would be legal to discriminate against someone because they are heterosexual, if in fact the Supreme Court decides that it is okay to discriminate on the basis of an individual's sexual preference. If a straight manager inna work place could fire someone for being gay then it should follow that a gay manager could fire someone for being straight. I would love to hear someone make that argument before the court.
Clare (NY)
@Steve Rather like “religious freedom.” Can a Catholic town clerk refuse to grant a marriage license to a Christian who has been divorced because remarriage after divorce violates the Catholic clerk’s religious beliefs?
Bald Eagle (Los Angeles, CA)
Focussing on legalistic arguments the writer seems to ignore the "elephant" in the room, the one that now sits in five of the nine seats, the Republican Party.
Blank (Venice)
@Bald Eagle The ‘good’ news there is that 4 of the 5 were Nominees of ‘Presidents’ that took office after losing the popular vote and the 5th was consented to after hearings that exposed his predilection for sexually abusive behavior.
areader (us)
“Title VII of the Civil Rights Act of 1964 prohibits discrimination ‘because of sex.’ Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.”" Judge Cabranes concluded: “That should be the end of the analysis.” What is a FUNCTION of sex? Let's say we have two MEN. One gay and one bisexual. Then, by that definition, they both have the same sex, but different functions of the same sex. So, how discriminating against one person for sleeping with men would be discrimination against him not just as a person but discrimination against him as a MAN, and discriminating against another person for sleeping with both men and women would be discrimination against him not just as a person but discrimination against him ALSO as a MAN? And a function of what sex is sexual orientation of bisexual persons?
KMW (New York City)
If the individual had been a transgender employee upon being hired, the employer might be accused of discrimination if he decided to fire him/her because of their sexual orientation. This employee was a man who became a woman and that might adversely affect the funeral home's business. People knew let's say her new name is Jill as Jack before his transformation and this might be off putting to more conservative employees and clients. The bottom line is the owner's likelihood which would be in jeopardy. Can you blame him for being opposed to this man's conversion. He could be put out of business.
KMW (New York City)
Correction: The bottom line is the owner's livelihood which would be in jeopardy.
Clare (NY)
@KMW Suppose a business owner had a white clients who felt uncomfortable around black people? Would it be okay for that business owner to refuse to hire black people because of that?
PJ ABC (New Jersey)
So to the people who are pushing the so called rights of the transgendered people to work wherever they want, and thus always claim discrimination if not hired... I ask, what about the rights of the grieving families to have a funeral or wake in a place that respects tradition and normal norms? I know you lefties want to change all the norms, but you lefties never realize how you trample on others' rights to buy the product they actually want, rather than the one you want to sell. You always think you're on the side of the righteous, and putting down people who disagree with you by calling them this phobe and that phobe. Phobia is a real condition; it entails fear. Most people are not afraid of gay people and are not afraid of trans people. But the left is in the business of mislabeling everything, so... But can we have a funeral home without being forced to see someone transitioning from X to Y? What about other traditional establishments. And can't the owner decide what kind of establishment he wants to run? It's disgraceful how the left wants to control honest businesses who try to cater to their clients, not their squeaky wheel employees. This is NOT a civil rights matter. Or rather it's a rights matter to the clients of the funeral home, not the complaining employee.
Mike (NY)
What about the reverse? If a gay man’s husband dies and goes into a funeral home and the receptionist’s desk is covered with evangelical bric a brac, crosses, Jesus saves signs? What if that man has been brutally rejected by his church as so many gay men have? Would it be right for that employer to dismiss the receptionist because her display of religion hurts the gay man viscerally? No. Not if she’s just conscientiously doing her work. The transitioning person at the funeral home should be treated with equal respect.
D (Btown)
I once was fired for being 5 minuted late, but I am a straight white man, you know that whole privilege thing
Blank (Venice)
@D If you’d been in a Union you would have been warned 3 times not to be late before you were fired. And your bathroom breaks would have been corporate policy.
Steve (Mamaroneck)
@D You were fired for being late, not for being straight. Imagine how you would feel if you had a gay supervisor that did exactly that. I'll bet that thought doesn't sit well with you. BTW, if you were a great and valued employee who showed up a few minutes late one time, I imagine you would not have been fired.
LInda (Washington State)
@Blank .. and that would be a good thing (I hope you meant to imply).
"Let me say something before we get off the gay thing. I don’t want my views misunderstood. I am the most tolerant person on that of anybody in this shop.... They’re born that way. You know that. That’s all. I think they are. " .... And if you look over the history of societies, you will find, of course, that some of the highly intelligent people . . . Oscar Wilde, Aristotle, et cetera, et cetera, et cetera, were all homosexuals. Nero, of course, was, in a public way, in with a boy in Rome." He then adds,.... "Just leave them alone...." What enlightened leader said this? President Richard Nixon!
The Buddy (Astoria, NY)
A skydiving facility such as Altitude Express, should be primarily focused at all times on the safety of their staff and customers, not on enforcing differing standards of acceptable behavior by gender.
Amy (Brooklyn)
@The Buddy That may be true, but it's not part of the law.
Dave (Rochester, NY)
A broader problem, evidenced by many comments here, is that Americans increasingly look to the Supreme Court to be some sort of super-legislature. A lot of arguments boil down to "they should do it because it's the right thing to do." In part, the Court itself may be to blame for this ignorance of its proper role, having overstepped its constitutional boundaries over the years on more than one occasion. But the Court's job is not to provide an end-run around the Congress. It's to interpret the law as written. Anything beyond that is Congress's job.
JefferyK (Seattle)
@Dave Um, what end run around Congress? The questions being resolved here are (1) is transgender discrimination a violation of Title VII and (2) is LGBT discrimination a violation of Title VII. These are legal questions. It is the purpose of the Supreme Court to resolve legal questions. The purpose of Congress is to legislate -- different thing, and that's not what's happening here.
Pete in SA (San Antonio, TX)
I somehow suspect, and have the confidence of my belief, that the Justices individually and sometimes collectively mean to do the right thing by both society and by the law. Certainly differences in philosophy and in reading both the Constitution and the Statutes exist, but the mantle of the Supreme Court weighs heavily on their shoulders. May God bless the Supreme Court!
Mor (California)
There should be no debate at all about LGBT rights. However, the case about a trans employee is trickier because it can be extended to outlaw what might be called “aesthetic discrimination”. What if the transitioning person simply does not look good in a skirt? Sorry but the trans people I have met (and I have met many at various gender-related conferences) often do not have the body shape to conform to their ideal, no matter how many surgeries they undergo. But there are a number of jobs where the aesthetic appeal to the customer is important. I frankly don’t know whether this is the case in a funeral parlor but I do know that when I buy clothes, jewelry or cosmetics, I will naturally gravitate to the best looking salesperson, whether male or female. Does it mean that the owner of a boutique may be compelled to hire an obese, awkward or ugly person and thus lose customers? And if not, what about the argument that the trans person in the funeral parlor case simply does not look good enough to do her job, regardless of how you define her gender?
JustaVET (Texas)
@Mor There are a lot if Cis people and I hate that term whose bodies dont fo t.f the stereotypical image society has. It's time to focus on individuals and not some stereotypical image that is false and does nothing but cause harm.
Mathman314 (Los Angeles)
Since the Democrats control the House, I'd like to suggest that the House immediately pass a bill outlawing discrimination against LBGTQ individuals; it will then be up to the Republican Senate to settle this matter - it would be interesting and informative to see what the Senate would do.
Blank (Venice)
@Mathman314 The Equal Rights Amendment has languished for decades lacking one more State to ratify the first Amendment to our Constitution since 1992....and there are far more women that vote in America than there are LBGTQ voters.
Sandi (North Carolina)
I wonder if, decades from now (assuming we survive that long as a country), we will look back on this argument the way we currently look back on eugenics?
Mark Thomason (Clawson, MI)
@Sandi -- The long view of history also calls into question where we will go with the whole idea of transgender. Having gender identity seems heavily dependent on having gender roles in the first place. I can imagine gender roles and gender identity disappearing in new changes to how we see ourselves and each other. That fits with more fully liberating both men and women as complete people rather than as roles in a social structure.
The Owl (Massachusetts)
@Mark Thomason... You do have to admit, Mr Thomason, that there ARE certain gender roles surrounding the issue of pregnancy and the nursing of babes. Only a certain amount of liberation is possible.
Mark Thomason (Clawson, MI)
@The Owl -- No, just the opposite. Gender roles around raising children are not fixed, and are changing. Even pregnancy itself has been done by a man recently. Just having the baby is only the first step anyway, and that is something overlooked by our abortion foes.
Jay Orchard (Miami Beach)
Unlawful discrimination because of sex under Title VII means the sex of the employee (just like the race or nationality or religion of the employee), not with whom the employee has sex.
The Owl (Massachusetts)
@Jay Orchard... That was Ms. Greenhouse's point in noting how carefully the Supreme Court phrased the question that the case before them will ask.
dgm (Princeton, NJ)
@Jay Orchard . . . Ah, but then your problem becomes "what religion am I today?" or "which deity an on my knees to this evening?" Religion is clearly more of an "orientation" than sexual orientation; it should be called "faith orientation" and then see what happens.
Thomas G (Clearwater FL)
Can the Supreme Court seem any further out of touch with reality? We have an openly gay man running for President and we have had three lesbians elected as mayor of major American cities, including Tampa and Chicago. The Supreme Court is going to tell us whether it is ok to discriminate against a person for being gay.
Jay (Cleveland)
@Thomas G You fail to understand the role of SCOTUS. They are not allowed to make rulings based on fairness or empathy. It is to interpret a law as written. People should require congress to get into touch with reality. Gender vs biological sex is going to be before the court yearly until congress acts. Can a biological male identify as a woman and take an athletic scholarship reserved for a biological female? Do testosterone levels determine a female? Can a company avoid discrimination laws by having 50 biological men say they identify themselves as women? The very laws enacted to protect women's rights are at stake. Title lX and equal rights are in jeopardy, not just gay rights.
Ann (Denver)
I believe the answer to question one is obviously yes. What possible meaning could there have been other than gender? When they wrote "sex", they didn't mean intercourse! Discrimination based on gender is against the law.
Amy (Brooklyn)
@Ann Give me a break. Surely you are joking! DNA is pretty clear that there is a deep biological difference between males and females. Maybe when a formerly-mail-gender-identifying-female actually gives birth then maybe we could agree. But not until then.
Madeleine (MI)
@Amy Doesn’t seem like a good argument. Using your logic, you would deny that women who cannot bear children are therefore women. Is all that we need to know about you is your genitals and what they can do? I doubt you would allow others to force you to change your body surgically to suit their idea of what you should be. I also doubt you would deny those who need reconstructive surgery so they can feel normal and in alignment with how they see themselves. We all need body autonomy. People’s sense of gender identity seems not to align with either sex chomosomes nor genitals; that is what we know from studying clinical populations representing intersex people, trans people, and those who experience body-altering injuries. People clearly do not exist within such a narrow binary as you suggest.
Ann (Denver)
@Amy Your refusal to accept people who feel their very essence, their true self is a gender other than their birth gender doesn't mean they are not valid. Your attempt to invalidate a very real human condition falls flat.
Valerie Elverton Dixon (East St Louis, Illinois)
This current SCOTUS is illegitimate. Injustice Gorsuch sits because Mitch McConnell and his gang of GOP liars and thieves stole it from a legitimately elected majority president so that a minority president elected with the help of a foreign adversary could fill the seat. And Kavanaugh belongs in jail for lying to Congress. They will rule, and we will live under the ruling. However, it ought not count as precedent. Everything this Court does deserves an asterisk.
Bob (Nyc)
@Valerie Elverton Dixon You, like many people, assume that if Republicans had given Garland his hearing, he would have been confirmed. I am in full agreement that Republicans wrongfully denied Garland his hearing, but there was no chance Garland was getting confirmed. Republicans had no obligation to then confirm Garland, and they wouldn't have. Just like if Democrats held enough seats they would have rejected any candidate put forth by President Trump.
Linda (Massachusetts)
@Bob You make some big assumptions here. Garland was actually considered a pretty neutral candidate, respected by both sides except for the real extreme right. I think that McConnell didn't dare bring up his nomination for a vote because he feared that there would be many Republicans who would vote for him. I think that was more likely than that they would have rejected him.
Astralnut (Oregon, USA)
I have seen that saying "who you are" in reference to sexual preference is doom for the individual. Sexual preference is What you are NOT Who you are.
Fred (Baltimore)
We shall see what the Supreme court does. Either way, it would be far better if sexual orientation and gender identity and expression were expressly included in federal anti-discrimination laws. Yes, this requires a different President and Congress. The patchwork of state laws is not sustainable, as people of course remain who they are as they cross state lines.
Jimbob (NH)
Ms. Greenhouse, this is an informative article. But why, oh why, does the sub-headline need to insert an obvious bias ("fired for who they are"). You surely know better. This is (or it should be) a case of statutory interpretation--NOT whether an individual justice believes that homosexuals or transgender individuals should be protected from discrimination generally. Reasonable lawyers could disagree about whether the term "sex"--as defined in Title VII--does indeed encompass the forms of discrimination at issue in these cases. And I'm sure any lawyer worth his salt would concede, once they read the parties' briefs, that each side has meritorious arguments on the correct interpretation of the statute. You do your readers a disservice when you frame this as a question of policy preference divorced from the differing theories of statutory interpretation.
The Owl (Massachusetts)
@Jimbob... True... But for the first time in a long, long while, Ms Greenhouse actually parsed the issues instead of front-loading her ideological proclivities into her discussion.
JustaVET (Texas)
@Jimbob The phrase All Men are Created Equal also includes women. When you speak if Sex are you talking about the individual secondary sexual characteristics such as what's between your legs or as the court as already has determined gender to be a part of " sex". You really cant separate the two.
W.A. Spitzer (Faywood, NM)
And what about the equal protection clause? How does it not apply?
Valerie (Miami)
Aside from the horrific immorality of excluding LGBT people from all protections that anyone else is entitled to, how it is legal for the US government to compel LGBT people to pay taxes while excluding them from taxpayer-funded protections? What is the LEGAL argument for exclusion from protections? A claimed belief in a mythology? Seriously?
Dave (Rochester, NY)
@Valerie Simple. They are not excluded from those protections. It's simply that those protections do not extend to their status as LGBT, any more than my status as a heterosexual entitles me to any additional rights.
Susi (connecticut)
@Dave Additional rights? LGBT community is expecting the same rights, not additional rights. No one can fire you because they don't approve of your choice of a spouse, why should your gay coworker be treated differently?
Valerie (Miami)
@Dave: When was the last time someone was fired specifically for being straight? We aren't talking special rights here, but equal rights. Why is that so difficult for you to grasp?
Scott F (Right Here, On The Left)
Thank you Ms. Greenhouse. I heard you speak at UNF in Jacksonville Florida about a decade or so ago. I was thunderstruck by your ability to translate into everyday language the byzantine machinations of the Supreme Court. You’ve been right too many times for me to dismiss what you’re saying as naive optimism. And your knowledge of the law and of the way the Supreme Court operates is second to none. I am an employment attorney who represents employees. I hope you are right!
sdw (Cleveland)
As we have come to expect, Linda Greenhouse uses impeccable logic in her analysis of the maneuvering and merits of the three cases scheduled by the Supreme Court to decide the scope of the term “sex” under Title VII of the Civil Rights Act of 1964. The employees should win in all three cases. The only caveat is that, just as the Supreme Court avoided being boxed in by a very zealous counsel in the funeral home case, there may be one or two concurring – not dissenting – opinions which will be cited in coming years to box in gay and transgender litigants as to the extent of what is permissible on-the-job conduct and appearance.
So much of our American history is defined by its inclusion of different kinds of people. The road to that goal has never been easy--our historical record on immigration is fraught and Native Americans bore the brunt of white supremacy arrogance. Nevertheless, in small steps at times, we have marched towards acceptance rather than rejection. Someone's sexual orientation is not a factor in one's being a human being. We know so much more about the human condition now that to deny someone a means to make a living because he or she has been brave enough to declare herself/himself of his real identity is unAmerican. I hope the court uses the law to make its decision and not the pervasive and insidious influence of a particular group's religious beliefs.
Angel (NYC)
So now the beer garden justice gets to decide a lot of people's right to be who they want to be. Lets go have a beer before we decide.
Mark (Las Vegas)
I believe the Supreme Court is going to rule in favor of the funeral home. Here's why: If they rule against the funeral home, then it means private businesses will no longer be able to have "men's" and "women's" bathrooms where they can enforce who uses which bathroom. I don't think the court wants to go there.
Kim (San Francisco)
The best solution would be to ban government and businesses from differentiating among people based on sex. This would increase freedom and equality for all individuals.
Gwe (Ny)
I think that when the framers envisioned the Supreme Court, they imagined a place where common sense, reason and humanity would not supplant, but complement, the white and black nature of interpreting laws. Call it the human touch. …..which is why this saddens me. Can we be honest and cut to the chase? This is about so much more than the right to work and be accepted. This goes to the heart of the personhood of transgender people and it affects whether or not society is willing to accept them as they see themselves. ….and it matters. I read some spastics a year or so ago. I hope they still stand but essentially, I read that by the time they are 20, 40% of transgender folks have *actively* attempted suicide. Think about that. …..and then let me add this. Gays and lesbians used to have similarly high suicide rates—and I also read those dropped after marriage equality. Meaning, society's acceptance and the belief in our basic dignity is a very important value to these individuals. So perhaps it's true that someone in the midst of transitioning may make a person uncomfortable the first moment they meet. Especially if it's the first time you've met someone in the middle of that journey. So what? Give it a moment. You might find that underneath the suit, the dress, the makeup, the whatever is just another soul looking to have a peaceful life. And in the middle of burying someone who would like rather be alive, can't we just give others a pass?
Gene W. (Richland)
@Gwe Well said, thank you. Although I assume you meant "I read some statistics a year or so ago." Auto-spell check, no doubt.
stewart bolinger (westport, ct)
The purpose of the court is to help the children in the US Congress have undisturbed play.
Mark (Las Vegas)
Gender is not a belief system. Archeologists can use the skeletal remains of a person who died thousands of years ago and determine if it was a man or a woman. If the Supreme Court rules against the funeral home, then hospitals should just stop putting gender on the birth certificates of babies, because what right does a doctor have to say it’s a boy or a girl?
Mark Thomason (Clawson, MI)
@Mark -- Just the opposite. Gender is the roles, the belief system. It is not automatic with sexual characteristics, which is what the skeletal remains can show. As for archaeologists, they've recently found Nordic burials of women's skeletons with men's weapons and other things. There is some debate whether those particular women had a male role in their society, as warriors and leaders.
Paul Wortman (Providence)
Let's hope that human dignity wins out over second-class citizenship.
Peter (Nashua, NH)
As a gay American, I absolutely believe federal law SHOULD extend to the civil rights of the LGBT population. Unfortunately, while I know how I wish the case would turn out, it is equally clear that Congress, back in 1964, did not intend to protect us. This is another case of people looking to the Supreme Court to legislate in an area where Congress has failed to act, this time shamefully. The Democrats have controlled both houses of Congress and the White House how many times since 1964? During any of these periods, did the Democratic majority make protecting LGBT Americans a priority? No, because it wasn't in their interest to change the law. They wanted our votes (and our money) and made no serious effort to give us legal protection. The same party that shut down the U.S. government over illegal immigrants would not lift a finger for LGBT Americans when they had the chance. So now we ask the court to do what Congress has failed to do -- interpret a law to cover LGBT people when everyone knows that, back in 1964, Republicans and Democrats in Congress clearly had no intention of protecting us. Here's a thought, Congress: Do your job and stop relying on the Supreme Court to do what you are too cowardly to do. Maybe gay Americans would not have had to wait 55 years if the Democrats, our supposed great champions, had cared as much about gay Americans as they do about non-American "dreamers."
mary bardmess (camas wa)
No one should be fired for who they are. If anyone can be then everyone can.
kjb (Hartford)
These should indeed be easy wins for the plaintiffs, but so should have been Masterpiece Cakeshop. There is nothing in the window dressing the Court placed on the question in the transgender case that prevents five justices from twisting themselves into a knot to reach a result pleasing to those who cannot see the humanity of LGBTQ people.
Sarah A (Stamford, CT)
Cases that are "easy wins" don't generally go to the Supreme Court.
Ed (Somerset, ky)
The mere reality that these three cases exist is nothing more than the prevarication of our “ we are all created equal and America is exceptional “ deception
J (Denver)
@Ed Exactly, just debating this issue flies right in the face of everything we claim to be.
Dwight McFee (Toronto)
Excellent as usual. Thank you.
P2 (NE)
You assume that current SCOTUS is driven through constitution, which is not the case. Last 2 judges were stolen seats and politial appointees.. don't expect a legally correct outcome. You will get an answer through GOP lens.
Bob (Nyc)
@P2 There's an argument one seat was stolen, not two. President Trump was duly elected and had the right to appoint justices to fill the open seats. Also, the argument that the Garland seat was stolen is incorrect. Republicans should have given him his hearing, but they had no obligation to confirm him, and they wouldn't have. Just like Democrats did everything they could to stop the appointment of President Trump's two picks (albeit they lost that fight).
Richard (Wynnewood PA)
The civil rights laws are intended to preclude discrimination. They are remedial in purpose. Congress wasn't focusing on LGBT people because few if any members of Congress knew what that term implied (if it had even existed). But their status is clearly defined by "sex," and the remedial purpose of the law should encompass them.
Conservative Democrat (WV)
A very well-reasoned analysis. But isn’t the real question why Congress has not updated this 50-year old law to protect transgender persons?
Zach (Washington, DC)
@Conservative Democrat is this a serious question? You do understand that there's one party that is still broadly hostile to LGBT people in general, right? How do you propose to get them on board with this (admittedly quite welcome) policy proposal?
Alan Mass (Brooklyn)
@Conservative Democrat The answer is simple: Most GOP members of Congress wouldn't vote to protect gays so why would they vote to protect transgender persons? In both cases, they would be committing political suicide.
Mark Thomason (Clawson, MI)
This is sound analysis, and very helpful. I'd add two points. First, this is statutory analysis, not Constitutional law. That means the rules the Court applies are different. More important in this case of changing social norms, it means that Congress can speak again. Even if the Court narrowed it, Congress could amend it to make it more broad again. The Court likely notices what Congress can and might do. Second, the multiple conferences produced a re-writing of the "question presented." It did not accept an appeal so much as craft an appeal. It is likely that the members of the Court already know from those 11 conferences what they together are going to do on the question they all together so re-wrote. The only reason I can imagine to re-write it to this language is to sustain the precedent. They did not need to re-write anything to reverse their precedent, because that is what was being asked. Combining these two ideas, we might see an opinion which is in part addressed to Congress, "If you think, then . . .."
Madeleine (MI)
@Mark Thomason Thank you Mark. Very helpful context, and I agree Congress must still act.
Tim Fitzgerald (Florida)
If the Justices ruling is a narrow interpretation of the statute, Congress is free to amend the statute to make the definitions explicit. This is not a social justice warrior case. This is a mundane, statutory interpretation case that will be very limited in its scope.
Susi (connecticut)
@Tim Fitzgerald If we had a functioning Congress, this might make sense. We don't.
Sarah A (Stamford, CT)
@Tim Fitzgerald - thank you.
Cate (Minneapolis)
@Stephan. Your comments here seem to show that you've put a good deal of time and thought into this issue. But whether one gets the oogies when they see someone like me is not the issue before the Court. The Court here is looking at an act of Congress, its constitutionality, and its breadth as well as equal protection and free exercise issues. I become physically ill at the thought that someone who believes Jesus and Ronnie rode dinos together would seek to eliminate my presence from the public sphere because I make them feel uncomfortable. Why should any of those folks be allowed out in public? They seem a lot more dangerous than I.
Eero (Somewhere in America)
The repeated consideration of these cases for review does seem to indicate there was some bargaining going on among the justices, but I suspect the 5 Republicans were the drivers of the deal. Certainly I think the transgender issue will result in a loss for the employee. Remember that Trump is prohibiting transgender people from serving in the armed forces. As for the discrimination against anyone other than heterosexuals in the workplace, I think the 5 Republicans will go there as well. A variety of states have passed laws forbidding this discrimination exactly because they read the federal laws as inadequate in this regard. As Ms. Greenhouse points out, once you permit discrimination against non-heterosexuals because they are not expressly covered by the federal law, you open the gate to permitting sexual harassment as well, since that is not expressly forbidden. I have a very dark opinion of this Court. I expect the worst from them, including their ability to hold to a promise they may have made to the 4 Democrats on the issue of discrimination against gays, which I fully expect the 5 Republicans to break. And then comes Roe.
Brian Barrett (New jersey)
Great job by Linda Greenhouse to explain what is happening at SCOTUS to those of us who are not constitutional law experts. The court under Roberts seems to be proceeding in a responsible manner and avoiding the trap being set for it by Trump conservatives. They are resisting the invitation to make broader, more global decisions on LGBT rights law by restating the legal questions more narrowly. This is aligned more closely with the philosophy of tuning the law by careful interpretation as suitable and real cases arise and is, in my view, entirely appropriate. The alternative approach, perhaps most recently exemplified by a Texas judge's ACA decision wherein the total law would be overthrown by constitutional objections to a single part of the law, is not appropriate logically or legally. I hope the Roberts court follows through on this approach as we all struggle with human rights in a changing world.
The Buddy (Astoria, NY)
It should be extremely simple. When an employer enforces a differing set of standards for the behavior of men and women staff members, it clearly runs afoul of the Civil Rights Act. But unfortunately, the conservative wing of the court has demonstrated that they are not shy about extending these types of culture wars.
rosa (ca)
I see. Now there is concern about the legality of sex discrimination? Now that there is a hard-core majority that hasn't a drop of respect for LGBT? Welcome to the club. I am a woman, anatomically, born like "that". And, because I was, I am not equal within the Constitution. The religious right demanded that our constitution mirror the discrimination of their Holy Book: God made women subject to the man... so, so would the Constitution. I don't recall too many men caring about that. There were a few outstanding men of note and I thank them. They were the ones who were puzzled that women were NOT included in the law. But, for the most part, most men who supported the ERA did so because they were gay and the law is a weapon to use in securing greater rights. However, once "gay" marriage became legal, all support for women's constitutional equality became nil. That left only the "Titles" to protect women's rights. However: They have proved to have as much legal standings as dog-catcher laws. I call them the "Jane Crow Laws". So, I didn't get rights just because I'm a citizen. And I didn't get rights as a tag-on to gay rights. Gosh, will I get full rights because the males of this country want the 'masc2fem' to get legal inclusion? Please remember this: In a patriarchal society, the status of a female serves as a warning to the other males. You will do as you are told - or else you, too, will have no equality. Beware those who weaponize discrimination. Pass the ERA.
Daniel (Bogota)
The fourteenth amendment provides equal protection under the law. There is no ambiguity.
rosa (ca)
@Daniel No, it doesn't. You need to read more Justice Ginsberg.
Elizabeth (New Milford CT)
Thank you Linda Greenhouse for lending us your big brain. I’m one of those citizens who is terrified by the clearly partisan disposition of the current high court. I appreciate your clarity and thoughtfulness and even handedness. These days the Rule of Law feels a lot like a breakfast buffet where courts and judges and prosecutors can pick and choose what serves specific cases well, as opposed to what protects us from decisions determined by partisan prejudice. You help me consider these concerns much more thoughtfully than I could on my own.
Jay Orchard (Miami Beach)
If firing a male employee because he has sex with men is considered sex discrimination because the employee would not have been fired for engaging in the same activity if he was a woman, then what would prevent an employer from firing either male or female employees who are bi-sexual? This is where the claim that being fired based on sexual orientation is the equivalent of sex discrimination falls apart. They are not the same and the statute needs to be amended to specifically prohibit discrimination based on the sexual preferences of an employee.
Zach (Washington, DC)
@Jay Orchard To answer your question...uhh, bisexual people also often have sex with people of the same gender? If your boss is firing you because of that, whether you're gay or bisexual isn't the issue - you're being fired because you're attracted, in part or in whole, to people of the same gender. You or I wouldn't be fired for being attracted to people of the opposite gender. Firing someone for being attracted to someone of the same gender...the only difference there is a person's sex. That's sex discrimination. Maybe more indirectly than the authors of the statute were thinking, but it clearly is.
Jay Orchard (Miami Beach)
@Zach M What if employer has a problem with bisexuality because it believes that you must choose between males and females, and honestly doesn’t care whether it’s a male choosing a male or male choosing a female or female choosing a female or female choosing a male? Sorry, the logic that discrimination on the basis of sexual orientation equals discrimination based on sex fails.
Matt (New York, NY)
@Jay Orcard That doesn't really follow at all. If a man is fired for being bisexual, he's still being being fired for have sex with men... so we're back to sex stereotyping.
Susi (connecticut)
Thank you for this informative and thought provoking piece. One thing that continually bothers me, though, is our relying on the courts to interpret laws in certain ways that they were not originally crafted for (because those issues were not on anyone's minds at the time), rather than the more straightforward solution - Congress putting forward clarifying legislation that would definitively protect gay and transgender individuals from discrimination, for instance. But that would require a functional Congress, which we are far from having, now or in the foreseeable future.
Matthew (Nj)
When it comes to civil rights it is NEVER appropriate for the will of a majority to legislate, in Congress or in state houses. The courts are specifically designed to deliberate on the constitutionality of laws that are passed. They are there to protect us from the tyranny of the majority.
Susi (connecticut)
@Matthew I agree that civil rights are not up to debate and certainly should not be dictated by the majority, but we do rely on Congressional legislation, and this case is no different - we are talking about interpreting specific pieces of legislation. If Congress passes legislation that is deemed unconstitutional, then it would be appropriate for the courts to be involved.
Sarah A (Stamford, CT)
This doesn't mean that the Court cannot find that the Act doesn't contemplate protection of the groups involved in this lawsuit.
Jay Orchard (Miami Beach)
"We’ll soon find out whether federal law protects L.G.B.T. employees from being fired for who they are." That's precisely the problem, Linda. Title VII does not prohibit an employer from firing employees for "who they are," whatever that encompasses. An employer may fire an employee because the employee is passionate about protecting the environment or engages in any other activity that "defines" the employee, whether it is working in a soup kitchen or being gay. Title VII needs to be amended to specifically prohibit discrimination based on sexual orientation.
NYer in WI (Waupaca WI)
This case is important for the LGBT community. We need to be able to win cases on merit by a conservative court. There should not be a long term requirement that our community only wins if there is a liberal justice majority or a minority + 1 swing vote. Fairness and equality should not be a right-left issue.
Gordon (New York)
this is not a requirement that we in the LGBT community have accepted. It is being imposed on us. Remember that when you vote in the next election
Chris (Michigan)
As the underlying objection to LGBT individuals is based on religious views, my layman assumption is that any affirmation of the right to discriminate would necessarily involve the courts putting their thumb on the side of religion. Conservatives should be careful what they wish for here. The same Christian employer who wouldn't hire a transsexual individual might one day find themselves at the receiving end of discrimination from, say, an Islamic employer.
Sasha Love (Austin TX)
I am quite doubtful the majority of SCOTUS give a darn about people like me, i.e. LGBTQ folks. We are living in the upside down world where corporations are people, SCOTUS doesn't see discrimination and guts the voting rights act, and in almost every instance votes on the side of the corporations instead of protecting the little guy. I have no faith in the leadership of this country, let alone the federal or my state government.
Paul (Brooklyn)
The LBGT community and their supporters did not learn the lesson Lincoln and others taught us. Go slow but sure on progress. Lincoln saved the union before freeing the slaves because he knew without the former he could not get the latter. Various demographic types like blacks, Asians, even gays at the start proved over time they were just like any other people and won their total rights slowly over time. LBGT should have solidified, codified laws like civil unions before they went for marriage equality. The got a "break" when Chief Justice Roberts ruled for gay marriage. The country was not ready for it. Gay marriage was widely frowned upon outside big liberal states. The result, an election of a demagogue like Trump. So now instead of slow, sure progress re this issue, we may be going back to the day of outward discrimination against the LBGT community. Get what you need not what you want. Learn from history or forever be condemned to repeat its' worst mistakes.
Brains (San Francisco)
@Paul That approach is convenient for those individuals who do not sit at the back of the bus, but those of us who pay equal taxes but sit at the back of the bus it simply is NOT! Progress is usually made through fighting!
kjb (Hartford)
@Paul You are wrong about marriage equality in at least two respects. First, Chief Justice Roberts vigorously dissented from the opinion in Obergefell recognizing that the fundamental right to marry included same-sex couples. More important, when SCOTUS decided Obergefell, polls showed that over 60% of Americans favored marriage equality. The Court was catching up to public opinion not leading it. Indeed, prior to Obergefell, several states passed marriage equality through legislation or popular referendum. In that light, it is patently unfair to blame LGBTQ people for the election of Trump.
eheck (Ohio)
@Paul This lecture is comparable to the scene in Mad Men where Betty Draper glibly tells Carla, her African-American domestic help, that "maybe it's just not the right time for civil rights." The glare that Carla gives in response is hair-raising. And rightly so. People who are being treated as second-class citizens don't have time to wait for everybody else to grow up and wise up. The LGBTQ community has been working for their rights since the 1960's, and they didn't have had to "prove" anything; they had to fight against laws that made their existence illegal. This isn't a recent series of events. The only people to blame for the "election" of Donald Trump are the Electoral Collect and the people who fell for his conman ruse and voted for him. And the people who truly need to "learn from history or forever be condemned to repeat its' worst mistakes" are the oppressors and those who refuse to join the modern world.
J. Waddell (Columbus, OH)
The challenge for the Court is to determine when something not specifically envisioned in the law should be covered by that law, or by the Constitution. There is an analogy here to events in the 1950's when there were concerns as to whether radio and TV had the same First Amendment protections as newspapers. Clearly the Constitution didn't mention either since they didn't exist in the 18th century. However, today we accept that the First Amendment covers new technologies that are extensions of the "press" just as we accept that the Second Amendment doesn't apply only to the muzzle loading muskets that existed in the 18th century. Whether the 1964 act should cover gay and transgendered individuals or whether new legislation is required, I can't say.
Sarah A (Stamford, CT)
An Act differs from an Amendment for precisely the reason you've articulated. It's dangerous for the Court to be too expansive in its interpretation here.
PaulB67 (Charlotte NC)
I don't dare question's Ms. Greenhouse's knowledge of the Supreme Court, so let me just add to her analysis today by saying that Chief Justice John Roberts has become the critical vote on the Court. I say this because it is clear that despite his conservative leanings (or perhaps because of those views) Roberts is on record as wanting to uphold or burnish the Court's non-partisan bona fides in the wake of clearly partisan undercurrents. On this particular issue, the opportunity for Roberts is to vote that the 1964 Civil Rights Act's inclusion of "sex" as a factor not to be discriminated against can and should include LGBT protections. Of course, this was not included at the time of the original ruling, but embracing the rights of gays and transgenders, he would come down on the side of those who believe the Constitution is a living document, not a straight-jacketed directive from men living in the 18th Century. I could well be wrong, and Roberts might side with the Court's conservative bloc. But if that were to happen, it is fair to conclude that the Court will have adopted a vestigial interpretation of law that will exclude all but straight citizens.
Susi (connecticut)
@PaulB67 Our last best hope is that you are correct and Roberts is concerned enough about his legacy to do the right thing. Time will tell.
AJ (Midwest.)
@PaulB67. I think from a legal persprctive it is easier to side with the employee in the transgender case then in the case of gay employees. If Roberts did that he could polish his bona fides as non partisan while pragmatically leaving open for Congress to amend Title VII to include gay workers an easier task in today’s world than trying to get protection for trans individuals.
Zach (Washington, DC)
@Susi sadly, based on some of his previous rulings, like the Muslim Ban, he clearly ain't concerned enough.
Martin (New York)
The problem with this, for progressives, is that most of us simply no longer trust the court to decide a case on the merits. Justice Roberts' attempts to keep up appearances notwithstanding, the conservative block, along with the party that nominated & confirmed them, see the court solely as a tool of Republican power. They may be dishonest with themselves about their motives, but dishonest they are. I know Ms. Greenhouse would disagree with me on this, but after cases like Bush v Gore, DC v. Heller, Citizens United, after 4 members of the court voted to overturn the ACA because it was possible to read one phrase to mean something different from what the writers, and the rest of the law, demonstrably intended, after the sleazy charades that maneuvered Gorsuch & Kavanaugh into their seats . . . . I no longer believe in the Court's independence or integrity.
Pquincy14 (California)
@Martin What I notice is that the current court is happy to be overtly political on nuts-and-bolts political and economic issues... as in the recent session about the citizenship question for the census. A series of very carefully reasoned decisions by lower courts pointed out that with no regard to the long-term issue, the current effort to change the census at the last minute transparently violates the Administrative Procedures Act. But none of the conservatives even asked about that. In contrast, the Roberts court has been extremely careful to avoid culture-war decisions. They punted on wedding cakes, have been ducking on abortion rights, etc., while Roberts's Obamacare maneuver is sheer judicial flim-flam trying to square a circle: the "punishing inaction" argument was a transparent ruse but beloved of the right, but Roberts could not let the whole act be struck down. So, if the conservative majority decides thought this was simply another case of protecting employers and businesses, they'd easily rule against the plaintiffs... but it obviously isn't, but is rather right in the culture wars, and thus liable to lead to some kind of contortionist to pretend to be 'originalist' while not opening a new flank to attack from the majority of Americans who actually support equality in employment.
Mon Ray (KS)
A nice, detailed analysis, but rather like trying to read tea leaves as a means of foretelling the future. My own personal opinion is that Roberts, who in several cases has shown himself to be a closet liberal, will vote with the liberal Justices. However, I think we will simply have to wait for the learned Justices to render their decision and any speculation before then is just that, speculation.
Madeleine (MI)
@Mon Ray Mon, to be fair to Ms. Greenhouse, she explored a possible outcome more to caution against knee-jerk reactions based on political fears. She wasn’t reading tea leaves so much as illustrating that the Judiciary has options to how legal questions should be asked.
Martin Veintraub (East Windsor, NJ)
I'm confused. The "single question the justices have chosen to answer", as stated here, appears to me to be two separate and distinct questions: is "status" as transgender, a psychological/medical condition, a sufficient defense to an employer termination action based on a dress code? Second, whether the facts of this case violate sexual "stereotypes" for all men and women? Whether men can wear dresses and women pants? The other analysts Ms. Greenhouse mentioned fear the results of this case b/c there are no simple answers to questions the SC have created themselves. They are not deciding the case brought to them: they are making their own case up! It's an opportunity for the wRong Wing Justices to take some bad facts-this matter probably could have been resolved w/o litigation-, an overzealous wRong Wing litigation outfit salivating to bring a case, any case at all, attacking the LGBT community and a new Justice or two, ready to oblige...someone, but not US. Ms. Greenhouse brings eternal hope and optimism to her court analysis. The best she can do here seems to be to say "uh-oh" instead of "oh no!".
Bookworm8571 (North Dakota)
The ADA requires that an employer make reasonable accommodations for an employee with a disability. Reasonable would not mean adaptations that cause significant expense or inconvenience to the employer, but physical accommodations or shift changes, etc., that let the employee perform the job. These cases fall under a different area of the law, but I could see being transgender as a type of hidden disability as some claim it is a mismatch between body and mind. If it were viewed as a disability instead of sex discrimination, i wonder what would be reasonable for employers to do?
Susi (connecticut)
@Bookworm8571 Would transgender individuals be willing to be classified as "disabled" just to get to the desired result? My guess is most would not, nor should they need to accept this.
DR (New England)
@Bookworm8571 - That's insane. Being transgender doesn't keep anyone from being able to perform life's everyday functions.
Bookworm8571 (North Dakota)
@Susi A disability isn’t a cause for shame. One of the recent theories is that brain differences in some transgender people might be caused by exposure to hormones in the womb. Something goes awry during fetal development that causes someone with a masculine body to have a brain that is more like a female brain and vice versa. There are also some studies that suggest a higher rate of mental health concerns in the same population, for whatever reason. I could see a lawyer having considerable success with an argument that it falls under ADA.
John Jones (Cherry Hill NJ)
SO A CONSERVATIVE DISTRICT 2 JUSTICE CABRANES, has upheld the plaintiff's complaint that there was sex discrimination in the case before him. The fact that he rendered a clear verdict upholding Title VII in the context of the case in question is plainly a roadmap for the Supreme Court to follow, the conservative members included. I do question why the funeral director was permitted to fire the male employee for violations of the dress code, when man-tailored women's suits have been around for a very long time. In my opinion, that would have been a reasonable accommodation (any disputes by fashion pundits notwithstanding). The ducks are all lined up in a row.
Revoltingallday (Durham NC)
Agree or disagree, this is great journalism. I am optimistic only because I see no reason the conservatives on the SCOTUS want to go “all in” in the culture war during the election. Trump got schooled against opening the front against the ACA, why would SCOTUS open a front to discredit themselves to a public that is learning to accept civil rights apply to LGBTQ people? I think it’s more astonishing that Ms Greenhouse’s explanation meets Occam’s razor.
Richard M (Tamps, FL)
If by "is a function of his sex", Judge Cabranes meant "function" in the mathematical sense, in which a function determines a unique outcome, then, at least according to standard and progressive accounts of gender identity, gender identity is not a function of sex. Indeed, that is the central tenet of gender theory. If instead the judge simply meant that gender identity is to some extent influenced by sex, then that is no doubt true, but far to weak to sustain the claim that this is just straightforward statutory construction. So I do not think Judge Cabranes' ruling gives much room for optimism about what SCOTUS is likely to do to the civil rights of LGBTQ people in the country. The conservatives, especially the two most recent ones, were selected to be on the court on the court precisely to stem the progressive tide. It is true that justices can be surprising. But don't count on it, especially not now.
Sarah A (Stamford, CT)
I'm pretty centrist/left-leaning and don't believe that the protections of Title VII should extend to gender identity.
Hannah (New York)
Why? Why is gender identity — an aspect of our humanity that scientists along with trans folk have told us is fixed by as early as three years of age — not due the same protected status as race or biological sex? If your answer is that gender identity isn’t explicitly written into Title VII, I have a hard time seeing how you think the constitution is a useable document when it comes to any fact or issue that we’ve come to understand with much more scientific rigor or empathy since the late 18th century.
Sam (Maine)
Why is it that so many self described liberals or moderates feel the need to first state their avowed liberalism and then disavow trans people? What is it about trans people that requires an exception to your worldview?
George S (New York, NY)
@Hannah The constitution is intended to set up a framework for governance, to protect citizens from the government and ensure their rights. Thus, it contains language that has, by necessity, had to be applied as time changes over the centuries (e.g., freedom of the press covers TV and radio, something that didn't exist in the 1700's). Laws, however, are different, they are supposed to be far clearer, not goals or aspirational aims. You cannot impose laws on the people and then tell them at the same time that the meaning is fungible and open to interpretation by judges and others. To do so puts us all at risk of being in violation of laws by saying "well, it doesn't actually say that, but it should/might/probably does so now you're going to be punished." If we the people want to include protections specifically for gays and trans people, then we need to demand that the laws be changed to do so, not hoping that a court will do that legislative job for us. AND - and this is important and ignore by many - the failure of Congress to act does not thereby grant that authority to the judiciary.
The Pattern (Pittsburgh, PA, USA)
The conservatives’ God will not be happy with them for their oppression of the persecuted. Plain and simple: it’s not gonna get them to the heaven they think exists. Love your neighbor is the message that counts. Empathy is heaven’s currency.
Samuel (Brooklyn)
@The Pattern Their God isn't real, same as every other god.
scm (Boston)
It is difficult to think that this current court would render any kind of fair and just decision. After studying Civics/Government in high school and college, I truly believed that the "checks and balances" and judicial integrity would ensure that anyone, no matter their wealth or circumstance, would receive fair and just treatment in our court system. Any case reaching the Supreme Court would be settled in the most scrupulous, honorable, and just manner of all. No more. How difficult it must be for those four Supremes who are doggedly determined to uphold the rule of law and make just, honorable rulings.
J (QC)
I admire Ms. Greenhouse's analyses very much. But I think she is being far too optimistic in this column in that she assumes the current conservative majority on the Court will act in ways that are intellectually consistent and in good faith. The Court is now thoroughly driven by a right-wing agenda, and eliminating LGBT rights is high on that list. I fear the analysis can begin and end with that.
Maxine and Max (Brooklyn)
There are two sides to the practice of stereotyping: how outsiders see members of a group and how members of the group see themselves. Stereotypes help members find the group they wish to belong to the same way they are used to weed out those who don't. Sex is by nature a discriminating process. Why is it that the very mention of sex, when not referring to heterosexuals, seems automatically to trigger mental pornography among outsiders, or am I stereotyping them against their will? If someone either voluntarily or involuntarily causes me to react to them with my private and perhaps unwanted thoughts, are they, in part, responsible? Such discomfort did not occur before I was aware of them, therefore, which is the protagonist and which is the invading antagonist? The issue of sex discrimination is at heart an issue of what is private and whether the public can impose sanctions against private experiences of sex. Would the Fourth Amendment protect Title VII this way?
John Graybeard (NYC)
If the Supreme Court had taken one of the transgender cases and put the others on hold, I would agree with Ms. Greenhouse. But by taking all three I think we are going to get something other than a LGBTQ victory. I cannot see any of the Republican Justices other than Roberts extending rights to a transgendered person in any event. Instead, I can see the Court, in another 5-4 split, deciding that "sex" means biological sex only. And they would then say that the remedy is up to a paralyzed Congress.
AJ (Midwest.)
@John Graybeard. As she said the split in the circuits all but obligated the court to take the cases of the gay employees. There really was no choice.
J (Va)
I’m retired now. But I can’t imagine trying to run a business with all of these employee issues going on. It seems to me businesses have a business to run. They don’t have the time and energy to cope with someone going through and extensive life changing and consuming change.
Julie Haught (OH)
@J Precisely how "time-consuming" is it to respect one's employees? If an employer isn't meddling in the employee's personal life, then the employer has no impediments to conducting business as usual.
Mimi (Baltimore and Manhattan)
@J What if they were going through cancer treatment? Do you have the "time and energy" to cope with that? Have a heart.
cds333 (Washington, D.C.)
@J Where do you get the idea that any of these employers had to expend any extra time and energy as a result of their employees' sexual identities? There is certainly no indication of that in the article. Do you have some personal knowledge of these cases? The employee in the funeral home case asked to be allowed to dress as a woman while transitioning -- in the same kind of respectful, appropriate attire that the women employees wear. What loss of time and/or money would the employer suffer as a result? It seems pretty clear to me that what they -- and you -- don't want to "cope with" is being around a transgender individual. It is certainly their and your right to refuse to associate with certain groups of people in your personal life. It is most definitely no one's right to discriminate against those groups in the workplace.
Don Shipp. (Homestead Florida)
John Roberts primary concern is the reputation of the " Roberts Court " and its legal legacy. Roberts wants the court to be seen as non-partisan, and understands that the extension of legal protection to the LGBT community is the " right side of history".He implicitly understands the sea change that has taken place in the United States over the past decade in regard to public attitudes toward the LGBT community, and realizes that if the Supreme Court were to allow raw bigotry against that community, the court would lose its legitimacy, and there would be an explosion of public protests across the nation against the courts decision.
Willis (Georgia)
@Don Shipp. I hope you are correct in knowing what Roberts' primary concerns are, and I don't suggest that I am more insightful than you, but the current court has already shown a deference to the President. How can we expect them to be different this time when it comes to matters of sex and discrimination?
David Wright (San Francisco)
I deeply wish I could believe this. If by some miracle you and Ms Greenhouse turn out to be correct, I will be very grateful. However, I’d be happy to bet $50 that the employers’ right to discriminate will win.
Don Shipp. (Homestead Florida)
@David Wright David, If the Supreme Court in 2019, legalizes the insidious evil of gender bigotry, it will totally destroy any shred of its legitimacy and will become the " Dredd Scott case " of the early 21st century.
Peter Jaffe (Thailand)
I’m fine with the LGB. But not the T. Why should the public be charged with unnecessary (and quite voluntarily ridiculous) operations. Not to mention the unfair advantage that could be placed upon sports competitions by accepting transexual rights.
Johnny Woodfin (Conroe, Texas)
@Peter Jaffe... Voluntary? I disagree. You're not paying attention to what's being said about the "need" to make changes. It's not just words, it's life. In sports... Agreed. I think there needs to be some categories created so that competitions and trophies are run in a fair way. Bringing bulk and muscle from a past life into a competition just isn't good sportsmanship.
Hannah (New York)
You’re fine with acknowledging that humans have a right to love whom they love, free from discrimination, but not that they have a right to love themselves and affirm their own identity free from harm or bigotry?
Gwe (Ny)
@Peter Jaffe Have you ever heard of hermaphrodites? Intersex? This is a biological issue and you being fine with it or not makes not one whit of a difference on the reality that you should try and accept. The T have been amongst us for eternity. In every culture. Through every era. So trying to force people to conform to rules that were made rendering them invisible is not okay. *It never was*. That's the true unfairness—forcing someone to be soothing they are not for everyone's else comfort.
Although I appreciate Ms. Greenhouse's parsing of these cases, her optimism is based on legal logic. That used to be the primary factor in a Supreme Court decision, but I fear that newer members of the Supreme Court are far too influenced by political considerations. I hope I'm wrong.
JP (New Jersey)
Thanks for offering a little antidote to my anxiety about this upcoming case. I don't share your optimism about the outcome--so many factors might shape the final opinion--but I'm happy to think that the Court may be genuinely entertaining a question, rather than advancing preconceived answer.
syfredrick (Providence, RI)
Given the fact that the conservatives on this court consistently favor employers over employees, are reluctant to protect the rights of individuals, and have shown hostility to gay rights (see who opposed Obergefell), I am not comforted by Linda's analysis.
Richard Mclaughlin (Altoona PA)
"Corporations are people my friend." And they are people who love to discriminate. Why would anyone think that Roberts thinks that any worker deserves protection? If someone isn't smart enough, or rich enough, or powerful enough to be a corporation or to be in a corporation, that's their problem. Of course those who have fought hardest, dirtiest, longest deserve preference. What other criteria would Roberts use, the Law?
Jackson (Virginia)
@Richard Mclaughlin. Where do you get the idea that corporations love to discriminate? Sounds like you have been passed over.
Valerie (Miami)
@Jackson: ...and it sounds like you didn't read the very article before you. Sit up and take notice, for once.