Anti-Gay Employment Discrimination Already Illegal Under Federal Law

by Ugh

So this is something I can support:

On Monday, Chief Judge Robert Katzmann of the 2nd Circuit U.S. Court of Appeals wrote that anti-gay employment discrimination is almost certainly prohibited under existing federal law. Katzmann urged the 2nd Circuit to reconsider precedent holding that employees cannot sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964, citing recent legal developments that support an expansive interpretation of “sex discrimination.”

This seems to be a relatively simple matter.  Did the drafters of Title VII think they were prohibiting sexual orientation discrimination when they barred employment discrimination “because of sex”?  Likely not (although there is usually a surprise or two when the historical record is closely examined).  But the article notes that SCOTUS recently held (in the words of the article) "sex discrimination encompasses “sex stereotyping”—mistreating employees because they do not conform to gender norms."

From that decision it seems the only logical conclusion that "sex stereotyping" can only include discrimination on the basis of sexual orientation, as not conforming to "traditional" gender norms. Indeed, even without the sex stereotyping decision, and as the judge notes in the cited decision, discriminating on the basis of sexual orientation "treats otherwise similarly‐situated people differently solely because of their sex."  And is for that simple reason sex discrimination.  

In my mind that is enough, full stop, and this is clearly covered by Title VII.  Of course, the 11th Circuit thinks differently because... it does.  No really, the 11th Circuit cited a previous case that said simply "discharge for homosexuality is not prohibited by Title VII."  Full stop.  Not even "because reasons".  Just because.  Truly those judges have dizzying intellects.

Ultimately, I have to guess that this will be taken up by SCOTUS, where I would guess there are at least 5 votes for the view that Title VII covers sexual orientation discrimination.  As Justice Scalia said about Title VII when an employer that it didn't cover male-on-male sexual harassment:  "Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

Update:  I meant to add that, ISTM, this is a perfectly fine, logical, and respectful of the "rule of law" way for the common law to expand a statute beyond the "intention" of Congress (or the intention of the mythical gigantic prescient perfect demigods of yore we sometimes refer to as "the Framers").  Indeed, I don't know how else this is supposed to work - applying a vague and general statute to specific and sometimes unanticipated situations.  I would guess that if you asked the drafters of Title VII what they meant by "discrimination because of sex" they would say something like - you can't fire or discriminate against a woman because she is a woman.  But that only gets you so far as you need to ask what does discriminate against means and then what does "because she is a woman" mean.  This question is answered above - treating otherwise similarly-situated people differently solely because of sex.  Very simple, and yet leads you to places where the drafters would not have gone - and indeed may have explicitly said they were not going had you asked them (and in fact they may have said this).  

But, we have a common law system, and this ISTM is the way it's supposed to work.  Lazy (or even non-lazy) labeling of this approach as "activist judges" will not suffice.

Update the Seconding:  And the 7th Circuit reaches the only logical conclusion.  And Judge Posner endorses my view set forth above:

I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.

Quite right, if I do say so my damn self.

Comments

[JanieM]

This fits with a longstanding theory of mine about the entwinement of gay stuff with gender stuff. That is, gay people violate one of the most rock-bottom gender-related rules, which concerns who you're supposed to fall in love with.

[Tony P.]

Janie,

My own long-standing theory is that certain people hate sex, for sex can lead to dancing. The easy way to prevent sex, in a purely heterosexual world, is to separate men from women. This expedient is not available when some men and some women are homosexual. That drive the sex-haters nuts, because complexity (let alone nuance) is beyond the capacity of their minds to deal with.

--TP

[jrudkis]

Somewhat off topic, but about acceptance of sexual minorities and implementation of policy and law.

I was just part of the transgender training for the Army Reserve in Utah. We are implementing the inclusion of transgender Soldiers. This was at a relatively senior level, down to Company Commanders and 1SGs.
It went reasonably well, and there were clear proponents of inclusion who were not afraid to be vocal. The point driven home was ‘dignity and respect.’ There was no one who felt comfortable being openly anti-inclusion, though body language certainly showed some resistance.

Where it got difficult is in the actual implementation of shower facilities. The Army will change someone’s recognized gender based on the Soldier and medical recommendation, regardless of surgery. In most jobs you are unlikely to shower en masse with your co-workers, sharing one of ten nozzles with two other people in a group of thirty, but everyone in the Army has done that at least once. Showering is a source of constant tension and complaints when the opportunity is scarce, so it is not unreasonable for Commanders to want clear guidance.

The most often cited worry was a female soldier who did not surgically transition from male, but is considered female to the Army, and this Soldier demanding to be able to shower with other female Soldiers, rather than accepting an accommodation with her own shower time. As presented, the commanders were told they must allow the Soldier to shower in the open bay with other female Soldiers if she doesn’t want a separate time.

From my perspective you are more likely to catch a leprechaun than have this situation, but it is the place where the discussion always goes, and at least is theoretically possible.

One fairly obvious solution is to stop building ‘prison showers’ and make facilities with individual ones. At least half of facilities today are individual now, including field showers that are mobile. But many aren’t. Maybe some of the 54 billion dollars being added to the defense budget can solve this one reasonable (to me) gender/sexual minority integration issue.

[Ugh]

One fairly obvious solution is to stop building ‘prison showers’ and make facilities with individual ones. At least half of facilities today are individual now, including field showers that are mobile. But many aren’t. Maybe some of the 54 billion dollars being added to the defense budget can solve this one reasonable (to me) gender/sexual minority integration issue.

It's also the solution to the bathroom problem. Just make individual stalls for everyone with floor to ceiling walls. For some reason in the US we have these stalls that are not at all private. Whereas in the public restrooms I've gone in Europe, the regular toilets (as opposed to the urinals) are all super private, as in no one could see in at all.

Does anyone know why US public restrooms have such sparse privacy construction? (I guess google might know....).

[jrudkis]

For some reason in the US we have these stalls that are not at all private.

The Army still has toilets with no dividers, and close enough your knees will touch the next person. Not often, but often enough (usually in training facilities...many of which are from WWII).

[sapient]

The Army still has toilets with no dividers, and close enough your knees will touch the next person. Not often, but often enough (usually in training facilities...many of which are from WWII).

All volunteer army. People need to be respectful and mind their own "business". I mean, maybe it's also an issue with some people sharing bathrooms with others with the similar anatomical parts? Close your eyes?

[jrudkis]

maybe it's also an issue with some people sharing bathrooms with others with the similar anatomical parts?

Sure, it is nasty and dehumanizing. I think that was the point during a draft Army, as opposed to simply being cost savings. Once you break through barriers like that, the thinking went, you could mold them into Soldiers.

I can tell you for sure when you have to go, you stop worrying about niceties like privacy and dignity.

But I think that is the point: today, dignity and respect should provide privacy for things like showers and poop.

[sapient]

today, dignity and respect should provide privacy for things like showers and poop.

I am for that, because you are experienced, and you say that's the way to go.

But as someone who has been in situations where dignity wasn't available: dignity is overrated. Sometimes you learn from being uncomfortable.

I'm not recommending this as a solution to transgender issues, except that we are so f'ing privileged that we don't know what it's like to not have clean bathrooms and all the amenities. I want that too, day to day. But on some occasions (rare, I hope) we have to be personally uncomfortable. Ouch. I've been there. I'll never forget it.

[jrudkis]

Sometimes you learn from being uncomfortable.

I agree. But that can happen when you are actually out on patrol, and have to poop in the center of a patrol base, because tactically that is the only safe thing to do. I assume that the female rangers had to do this in Ranger School surrounded by males, and it is appropriate because that is the only way to relieve yourself in enemy territory. I hated it and I was with all males. Probably not necessary in the billets.

[sapient]

But that can happen when you are actually out on patrol, and have to poop in the center of a patrol base, because tactically that is the only safe thing to do.

Yeah, that's what I said - you know best.

[CharlesWT]

Does anyone know why US public restrooms have such sparse privacy construction?

A factor may be cost of installation and ease of cleaning.

You haven't taken group showers until you've done it every day for several months with 40 other Marine recruits. With the DIs standing there making sure you soap and scrub every square inch.

[jrudkis]

CharlesWT:

Can you imagine doing the transgender training or recently homosexual integration training with those 40 marines?

Our military youth today are accepting it generally in stride. Not all, of course, but for the most part integration of gays has been a non-issue. Transgender is such a smaller population it is hard to generalize, but I doubt it will be much different. The older soldiers are harder, but have too much vested to risk going against policy.

[Nombrilisme Vide]

One fairly obvious solution is to stop building ‘prison showers’ and make facilities with individual ones. At least half of facilities today are individual now, including field showers that are mobile.

They're getting there. In 2010, we had stalls in BCT (at Relaxin' Jackson, but still). For my brief time at OCS we had stalls despite being in buildings from... the 60s, I think? AIT was run-down buildings from who knows when, and different floors in the same building had stalls or bays. My first unit put me in a perenially-refurbished 1964 barracks with two four-head bays per floor, plus individual bathrooms in the NCO rooms. Downrange, it was stalls, though I was a fobbit. Back in garrison through ETS, I was in 1+1, so it was civvie facilities.

Full disclosure: 3.5y AD with a deployment, but I never went to the field once. And by what I heard, JBLM wasn't bad about facility modernization compared to some bases. So my experience probably wasn't typical. But they're definitely moving that direction, even if it'll be quite a while before all the old stuff is gone.

The Army still has toilets with no dividers, and close enough your knees will touch the next person. Not often, but often enough (usually in training facilities...many of which are from WWII).

FWIW, I never saw these, even in TRADOC. Old Army, new Army, etc.

Probably not necessary in the billets.

Absolutely not necessary in the billets. Indeed, counter-productive in the billets. As I'm sure I don't need to say (to you), do you want servicemembers defrauding the government by entering marriages of convenience with each other to get out of the B's? Do you want other servicemembers wrecking their lives (and combat readiness, if we want to be all pragmatic about it) by entering into hasty, reckless marriages with civilians (or other SMs) they hardly know that'll take their minds off their jobs to get out of the B's? There are solid, pragmatic reasons to make livable garrison billets rather than merely functional ones.

[Matt McIrvin]

@Ugh: Does anyone know why US public restrooms have such sparse privacy construction?I think it arose as an attempt to deter people from having sex or injecting drugs in the stalls.

[Matt McIrvin]

At the elementary school where I went for third and fourth grade, there were no doors on the stalls in the boys' bathroom (I heard they had them in the girls'). Bullies took advantage of this to do all manner of terrible things while you were on the toilet.

I ended up avoiding the bathroom entirely and just holding it in all day. Which was particularly difficult since I was being bused all the way across the county and got home rather late. I had a couple of accidents on the half-mile walk home from the bus stop.

[cleek_with_a_fake_beard]

Does anyone know why US public restrooms have such sparse privacy construction?

one possibility: it's much quicker to mop when stall walls don't go all the way to the floor.

[Ugh]

All those reasons make sense, although all would also seem equally applicable to Europe.

Must be US culture...

[cleek_with_a_fake_beard]

google tells me that this is a very popular question, and that we've hit on all the most popular reasons.

[Ugh]

Very private stalls would also allay a lot of concerns about those millions of men who are willing to dress like women and claim they are transgender if challenged in the women's restroom, all just to peek in the stall....

[Nigel]

For some reason in the US we have these stalls that are not at all private.
The Army still has toilets with no dividers, and close enough your knees will touch the next person...

Sounds uncannily like the facilities you can still see at Housteads Fort on Hadrian's Wall.
And I always thought the comparisons between the Roman Empire and the US slightly fanciful.
:-)

[Ugh]

I liked this on Gorsuch and his hearing by Lithwick. In particular:

To put it bluntly, just about every “little guy” in America was being sucker-punched by government in some fashion last week at precisely the moment Gorsuch was repeatedly affirming that if someone is going to protect the little guy in America it needs to be Congress and the president, but most certainly not judges.

[Ugh]

More on Title VII in a different application.

fixed that typo in the link for you. wj

[Ugh]

On my second update - this looks like it will head to SCOTUS. I guess we will see which side of history Roberts and Gorsuch the Usurper want to be on.

[Ugh]

Oh and thanks wj