Biological Sex & SCOTUS

Interesting logic at work here from Gorsuch.
"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," Gorsuch writes. "Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."
That's really plausible; the only issue is that mere statutory law should not be able to override constitutional protections for religious liberty. An Orthodox/Catholic/Muslim employer who declines to employ gays because they don't wish to provide material support their spouse is acting according to an ancient religious doctrine in each case. They're not motivated by mere animus, but by an attempt to live according to orthodoxies that are being declared illegal here -- exactly what Amendment One forbids.

The author of the piece has another bit of logic to advance.
To be clear, the court could deliver one of greatest legal protections for gay and transgender workers specifically because it acknowledges a fact deemed heretical by the most vocal woke activists: Namely that biological sex is real.

For years, the wokes have attempted to cancel everyone from right-wing trolls to liberal scientists for pointing out that biological sex is a scientific reality, one that specifically validates gay and transgender folks as a distinct class. And now the court has decided that because of that distinction, they're a protected class.... This is a victory for gay and transgender people, and hopefully one that puts to bed this hysterical canard that acknowledging the reality of biological sex is somehow hateful or dangerous toward transgender folks.

24 comments:

Elise said...

According to this article:

https://www.washingtonexaminer.com/opinion/conservatives-should-follow-neil-gorsuchs-lead-on-supreme-court-lgbt-employment-case

... Gorsuch explains that although this current set of cases involved no religious freedom claims made by the defendants, future cases will require the court to carve out exceptions to Title VII for bona fide religious institutions, as it has in the past.

There's a bit more on the same topic at the article.

Grim said...

As long as there’s an adequate carve out for religious liberty, I am otherwise unbothered.

Dad29 said...

Well, then, let's disband Congress entirely as they are no longer needed for "legislating." We have Nine Wise Ones for that task.

Sorry, but since Congress has refused--several times--to protect homosexuals and trannies, they do NOT have "rights".

And you dismiss rather easily the demolition of Title IX sports for women along the way.

Anonymous said...

"they're a protected class"

Deserving of special rights denied to the seperate but equal, or "non-essential" people, due to historical grievences, special benefits that will be set asside when we return to "created equal" as a matter of law, or enshrined forever in a new caste system courtesy of the specially educated brahmins of the SC.

Grim said...

“...you dismiss rather easily the demolition of Title IX sports for women.”

Well, let me dismiss it explicitly, then. Feminism has been telling me for decades that it is sexist to suggest that they can’t compete with men and win. Anything I can do, they can do better. They shouldn’t have any trouble with a transgender if they’re ready to take on straight-up male competition.

No more women’s sports. Everyone in one pool. Let’s put it to the test and see what happens.

ymarsakar said...

Grim, I'd like to gather everyone on the internet that thinks they can out argue Ymar, because they clearly disagree with me about all kinds of stuff they are unwilling to voice, and see what happens.

I have been ready for the test for a long time.

I suspect this test of yours would accomplish much of the same. Everyone just explodes, which is fine, because obviously keeping those desires and urges hidden, does not do anything for the public peace.

ymarsakar said...

I read your writing, Grim, and Gorsuch, but I understood literally nothing about it. I can understand the words, but the ideas... they cannot reach me. This must be how other people perceive me, I now understand.

Dad29 said...

So you also dismiss an Iron Law that it is never permissible to obtain a good using bad means? SCOTUS usurped Congress. We may agree that homosexuals have human rights, as do trannies; but that 'good end' does not justify the Courts's 'bad means' of legislating from the bench. And that 'legislating' description was given by Alito, Thomas concurring.

Grim said...

It strikes me as a straight line reading of the law, not creating new law. Congress can change the law if the court reading of the law is not what they intend; and as Elise points out (and I confirmed later), the ruling does explicitly state that the religious aspects may deserve to override this ruling, but that wasn’t an issue in the controversy before the court. That kind of circumscription is proper.

Grim said...

It also only bans bare discrimination. If you fire a trans worker because they’re verbally harassing people who don’t use their preferred nonstandard pronouns, that’s not discrimination based on sex; presumably you might fire anyone who was disruptive or verbally abusive regardless of why.

Elise said...

No more women’s sports. Everyone in one pool. Let’s put it to the test and see what happens.

The feminists you refer to will not suffer from this; they probably won't even care. They have made it clear they privilege the goals of (some) transgenders over the well-being and happiness of women and girls. The ones who will suffer from this are 15-year-old girls who enjoy sports, enjoy competing, and enjoy winning.

On the other hand, it is not entirely clear the SCOTUS ruling will result in biological males having the right to compete in women's sports. Someone on Twitter (I cannot find it again so I'm paraphrasing) claims that J.K. Rowling and Justice Gorsuch are saying the same thing: You can protect transgenders without saying they are the bioses they claim they are.

Grim said...

The ones who will suffer from this are 15-year-old girls who enjoy sports, enjoy competing, and enjoy winning.

It's only the winning that might be at risk. But perhaps not; at least some of the feminists keep saying that natural variance in individuals is much more important than sex-based differences, and thus that some subset of women will be able to compete and win.

We'll see if they're right.

The problem has been that when we do try to put these questions to the test where it really matters -- as for example in the USMC's study of mixed-sex combat units compared to all-male ones, or the UK MOD's Tri-Service Study of the same thing -- we always end up hearing that the evidence should be dismissed because of this, that, or the other. No artificial test will be accepted as evidence.

So fine; whether combat forces can or can't function properly is very serious, but youth sports are just youth sports. Let's pull the stops out and try it on a field where it's just a game, and the stakes are far lower than they are in war.

douglas said...

I think a real problem here is that 'trans' is not an immutable characteristic like race, or a recognized protected case like religion. Who is trans? Couldn't *anyone* claim to be trans, and then claim harassment as a result? The boundaries are not clearly defined here. Isn't this exactly why you want congress to write the laws and the courts to simply apply them narrowly?

Grim said...

Well, maybe, if you think Congress is capable of greater clarity.

When I lived near Athens, GA, there was a temp service that had a billboard on highway 29. The ad was built around a joke that they wouldn't send a guy in a dress to work for you if you said you had a 'dress code.'

That's the point I take Gorsuch to be making. If a woman showed up in the dress, that'd be fine. If the guy showed up in the same dress, as was the point of the ad, you'd run him out because of the scene he'd make and the fact that he'd drive off customers.

It really is their sex that is the only difference in the examples.

Maybe a business owner should be able to say, "Look, you're going to run off my customers, and I can't stay in business that way." That's a pragmatic, non-animus-based reason for not employing guys who wear dresses, at least in some communities. (At least the business owner isn't motivated by his or her own animus, though perhaps by the community's; but surely the business is not responsible for that community's standards; the business just has to live with them.)

But the law says, currently, that you can't discriminate on the basis of sex. That is what it says. If it should say something else, well, Congress can change it.

Dad29 said...

It strikes me as a straight line reading of the law, not creating new law.

Gorsuch drowned many people with meaningless gibberish wherein he claimed to be 'textualist' while perverting the definition.

Alito & Thomas called it what it is: legislating. Kavanaugh concurred with them. The word SEX is very specific and only Congress can "update" the words of the law--which is what Gorsuch did.

It is ASSUMED that SCOTUS will carve out religious yadayadayada usual conditions yadayadayada. You know the definition of "ass-u-me," right?

If you really think this ruling will be limited to employment......soon enough, you'll be guarding the ladies' room door when your daughter/wife is in there, because some Tranny will want to be in there, too. And that WILL be "legal," as "accomodations" will follow "employment" as night follows day.

Dad29 said...

but youth sports are just youth sports.

Frankly, Grim, I think you should delete that remark. I've NEVER coached a "youth" team which did not have a ferocious desire to WIN.

Grim said...

I've never coached a youth team, but I've attended plenty of youth sports where the kids could barely be roused to think about the sport on the field. They would really have rather have been playing in the mud, or as they got older, on their phones.

But granted it means something to some people; however much it means, the stakes aren't the same as they are when we deploy infantry units at war. Even a very serious game is still a game.

ymarsakar said...

(At least the business owner isn't motivated by his or her own animus, though perhaps by the community's; but surely the business is not responsible for that community's standards; the business just has to live with them.)

In Georgia, there is a cafe called Hooters. I was under the impression that they explicitly sought out rather youngish females who looked fresh and had certain chest endowments. I am sure the employed male waiters but... they would be cleaners or working behind a counter or preparing the food. I have never been in one, but this state being what it is, talk goes around.

ymarsakar said...

So fine; whether combat forces can or can't function properly is very serious, but youth sports are just youth sports. Let's pull the stops out and try it on a field where it's just a game, and the stakes are far lower than they are in war.

Other than Duke what's his name talk that the fields of war was won on the playing fields of E, in the war vs Napoleon.

If the youth are taught that their hard work will not be rewarded, will they be capable of anything in a military?

This is the same victimology and spirit of conflict that killed the black community's upper rise. You can safely assume this is not a coincidence. THis is intentional.

Even a very serious game is still a game.

Which is why war games exist.

Humans, like monkeys, learn the best at play. The more you learn by bleeding on the practice field, the less you bleed on the battle field or sphere.

Dad29 said...

Yes, war is more important than basketball. That's why we pay soldiers on the same scale as Michael Jordan.

Finally: that decision is the apogee of Nominalist "thinking"--a rejection of Thomistic principles--and a warning that the US's system has gone drastically off-course.

Grim said...

I think the basketball argument is a weak analogy -- we certainly spend more on the military than the NBA -- but insofar as it is defensible, my proposal will for the first time allow women to compete for inclusion in the NBA! So if the feminists are right and they really can do it, I'm just clearing the way.

If they're wrong, well, the truth also sets you free (even if in a different way than a millions-dollar NBA contract).

Now, if you'd like to expand on how you think Nominalism is involved here, I'd be happy to consider that argument. I'm not instantly seeing the connection.

Dad29 said...

As I understand it, Nominalism allows one to define real things in one's head; that there are no 'names' of things such as "rock", "human being," "carrot". All of those names are in your head.

Thomas would not approve. To him, there ARE 'things' which are not in one's head--they are very real and un-changing no matter what one thinks of thsm.

Grim said...

The way it's usually put is that universals don't exist as real things, yes. They intend especially to deny the reality of Platonic universals but also Aristotelian forms, which is a strange thing to deny; for Aristotle, a table is a table in part because it has the form of a table, i.e., the material parts are placed in a particular order that will support weight off the floor. If the same parts were just in a pile, you don't really have a table.

This ruling could be guilty of that if the idea was that 'sex' isn't real, and thus could mean lots of different things and we are free to decide in every generation what it means. If that was the ruling, I'd agree that it was nominalist and wrong.

That isn't what Gorsuch says, though. To return to the example from the Athenian billboard given a little bit up in this comment section, he says is that you can't have a rule that forbids a man to wear a dress but not a woman. He accepts the reality of sex, and applies it in the traditional way. Just because the only reason you'd be firing the man is because he dresses in a way that you'd find acceptable in a woman, you are in fact discriminating on the basis of sex -- on the same old idea of sex, i.e., 'being a man' vs. 'being a woman.'

I expect conservative-leaning corporations will try to adapt to this by adopting dress codes that are unisex, so that all women end up dressing like men to avoid men dressing like women. That's a real loss, but so too will be the progressive corporations adopting unisex dress codes that allow men to dress as women at work. Both of these will increase the amount of ugliness in the world, and decrease the amount of beauty.

However, that is not a problem for SCOTUS. The job of SCOTUS is to apply the law that exists. Changing the law so that it better fits our ideas of beauty and right is for Congress to do. Gorsuch has followed the logic, and the old meanings of the word, in a way that makes sense to me. If it has led to an undesirable result, the place to seek remedy is Congress and not the courts.

Dad29 said...

Here's the Big Lie of the decision:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” he wrote. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

No. The discrimination is due to the person's CLAIM to be "not-male" despite being male, or the CLAIM to be "not-female" despite being female. That's in the case of a Tranny. Gorsuch approves fantasy as truth here, just like Kennedy in another ruling from Outer Space, and Gorsuch adds that we all must accept the un-truth. That, as you know, is the single most significant hallmark of Tyranny.

WRT homosexuals, there are no CLAIMS which are flat-out false on their face.