A MATTER OF SEX

The Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of, inter alia, (among other things) sex or blogger affiliation. 

After enough electronic paper to deforest an electronic forest, pleadings, briefs, amicus briefs, appendixes, bench briefs, ad Infinium, the issue in Bostock v. Georgia boiled down to this simple question: when the law was drafted in 1963-64, and the term sex was used, did it just mean male/female, or sexual orientation? 

Most people think it applied to sexual orientation. Conservatives, limited to the strict interpretation of the text, argued that sex meant male versus female in the context of discrimination. 
One fun fact of the case: One plaintiff worked as a skydiving instructor, until it was learned he was gay, and then his ripcord was pulled and he was fired. 

Justice Gorsuch wrote the majority opinion. Legal conservatives now want to impeach him. 
Gorsuch concedes that the term sex, as used in 1964, other than the extramarital escapades of President Johnson, referred to the biological orientation of the individual. So then that should be it-right? Case closed- fire all the gay people you want. Hurray and MAGA and pass the Champagne and condoms. 

But wait- because of "because of" there is more. Huh?  Let us elucidate. Gorsuch writes that because Congress used the phrase "because of sex" courts must apply a "but for test" which he says means change one thing at a time and see if the outcome changes.  Now "but" has intruded into a gay sex case. Conservatives cannot be happy with this grim turn of events.
There is more to the majority opinion, but frankly although we like the results (our ox having been gored) we cannot abide by the reasoning. Justice Gorsuch must have found himself a hot-yoga studio in DC, because he twists and turns the language of the statute, conceding that  that although "sex" as used in the statute simply and solely prohibited discriminating against someone because they were a man or a woman, it now means today (without- lord forbid, the court legislating such an outcome) much much more. It now protects people who engage in homosexuality, pansexuality, abstinence, monks, and those who peruse websites like "girls gone wild" and "underneath their robes".   

Gorsuch correctly writes that "Title VII's message is simple but momentous: An individual employee's sex is not relevant to the selection, evaluation, or compensation of employees." Somehow Gorsuch finds in that phrase the additional prohibition again an employee's sexual activities. It is not there- but perhaps in the words of his ideological hero Justice Douglas, it exists in the "penumbra" of the words. See Grisworld v. Connecticut, in which Douglas, writing for a 7-2 majority, "finds" a right to privacy, not specifically written, but hiding in the penumbra  in the amendments to the Constitution. Perhaps all it takes to be a great justice is a really big magnifying glass, the better to espy words not written, but floating in the penumbra of things. 

The dissent says a lot of mean things about the majority opinion, but Justice Alito's argument comes down to this: sex and sexual orientation are two different things and if Congress wanted to prohibit discrimination based on sexual orientation it would have said so. Unfortunately, Alito is right (for once). 

If a statute prohibited discrimination against people who played sports, that does not mean it prohibits discrimination against people who support a particular sports team. You root for the Dolphins, that means you are used to enduring pain- you're hired. You root for the Buffalo Sabres, and nobody knows who they are- you're fired.  Such a statute would prohibit preferential treatment to bowlers and runners but would not prohibit the justifiable goal of firing all employees who are Patriot fans.

So now perhaps your ox is gored. You like the result. You love the result. You cannot understand how we are criticizing the result. We are not. Run for Congress on the platform of passing legislation prohibiting discrimination based on sexual orientation, and you have our vote.  But unless you are a member of Justice Goruch's hot yoga studio and like downward dog, his opinion is deeply flawed.