Bostock, Gorsuch, SCOTUS & The Emperor's New Clothes

"The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” 
The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. 
But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female. 
Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of’” ...In the language of law, this means that Title VII’s “because of ” test incorporates the “‘simple’” and “traditional” standard of but-for causation...
That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause... In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. 
Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. ... 
When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law."
--Neil Gorsuch, opinion

With his Bostock v Clayton County decision Justice Neil Gorsuch reasoned that a company cannot fire a man or refuse to hire him because of his sex, and that means if his sex is "homosexual"  or "transgender" the company has violated his rights under Title VII of the Civil Rights Act of 1964.

Mad Dog was delighted with the outcome, i.e. preventing homosexuals from being fired for being homosexual, but had to wince at the means by which this happy outcome was achieved, not that Mad Dog was at all surprised by this legal sleight of hand--after all Justice Scalia did even more back flips in his Heller decision giving any individual the right to own a howitzer whether or not he was a member of a militia, as stipulated by the 2nd Amendment. Scalia did a back flip with a full twist on that one, whereas Gorsuch did a simple back flip. 

As is now common in Supreme Court decisions, the justice writing the opinion goes to the meaning or possible meanings of words we all thought we understood like "sex"

"Sex" to most people means gender, i.e., are you a male or female, as defined by your genitalia, or, if you've paid attention in class, to your chromosomes, or your hormones.

If you are really sophisticated and have followed the case of the track star, Caster Semenya, you know that sometimes sex chromosomes and even sex hormone blood levels do not settle the issue of gender, and that gender is something of a definition, a semantic thing more than a biologic thing. 

Gonads are testes; male testosterone levels

But for Justice Gorsuch, if you consider the woman who on Sunday marries another woman and on Monday gets fired because she has publicly declared she is a homosexual, then you have been fired because of your "sex" which is to say the way you prefer your sex, which would, no doubt have surprised every Congressman or Congresswoman who voted for the 1964 act. 

By the same reasoning, if a man is convicted on Monday of having had sexual relations with an eleven year old girl and is fired on Tuesday for his version of "sex" then that man's civil rights have been violated by the company which fired him, because, after all, it fired him for the way he prefers his sex, i.e. with under aged children. (Yes, yes, I understand you could fire him for having committed a felony, but then we could argue about the various understandings of the word "felony.")

You will object, the pedophile is a very different beast from the homosexual and from the trans sexual, but if you are defining sex as "sexual preference" or the way you desire to have sex and with whom, then the pedophile has also been fired because of his sex.

Not the outcome we want.

That's the problem with making rules based on outcomes.

Ross Douthat calls Gorsuch's reasoned decision "an act of sophistry, not interpretation" and of course Douthat is simply stating the obvious.

Gorsuch anticipated the objections, of course.  He tried to disguise his ruling as proceeding merely from step to step: if you accept this, then you must accept that.  And there is that lovely, "there but for this, goes that."  So he claims his hands were tied. He simply had to rule as he did once he read the text of the 1964 law which so clearly stated you could not be denied employment because of your religion, color, or  your sex. 
Of course what Congress what saying was you could not be denied because of attributes which ought not be considerations in whether you can do a job: your religion, which you embrace, your color which you cannot help or whether you are male or female, which is what "sex" meant in the days before transgender medicine. 

Anticipating objections from his colleagues that if Congress had wanted to protect homosexuals it would have said you cannot be fired on the basis of your "sexual preference" and it had plenty of opportunity to do that later but voted that down. And Gorsuch is right to say Congress's failure to be brave subsequently does not relieve you the duty of respecting the law they did pass. 

The problem is, the law they did pass was clear as day: They didn't want your boss firing you for being Black, Catholic or female. If you were gay or transgender or an anti vaxer or and advocate of Free Love or a Free Mason or a nudist or a Communist, you were not protected; out of luck. Congress would protect some classes of people, but not others.

Among Friends

Of course, Justice Alito got to the heart of Justice Gorsuch's claim he was simply constrained by the "text" of the 1964 law and Alito replied this was like a pirate ship flying a false flag while lulling its prey into proximity. Fact is, the text itself was clear and there is no question about what Congress meant by "sex."

You may say this opinion belies Mad Dog's long held contention that he could predict the outcome of any Supreme Court case with significant social/cultural content based on a one paragraph description, that Alito, Thomas, Kavanaguh, Gorsuch and usually Roberts would vote one way and the liberal justices the other, and here Gorsuch surprises. It's the old, "Don't tell me about the law; tell me about the judge" thing from Roy Cohn. 


But in Gorsuch's case, while he is conservative about most everything, he is not about homosexuality; he belongs to an Episcopal church which has gays and the Episcopalians have split over embracing gay clergy and he is with those tolerant of gays. So he voted, had you known this about the man, exactly as you would predict.

Mad Dog got advanced warning of this side of Gorsuch from a Colorado judge, who, at the time Gorsuch's name was proposed as an archetypal conservation told Mad Dog, "He may, occasionally, surprise you...and the Federalist Society."

Mad Dog has long argued that Supreme Court justices decided cases in reverse: Supreme Court law works backwards. You start with where you want to wind up, say legalizing personal ownership of guns, or permitting abortion, or outlawing segregated schools, or endorsing slavery and you work backwards from there, finding laws and reasons or definitions of commonly understood words and arguing or redefining and you claim you began with an open mind, but the text of the law, the original intent of the lawmakers or the founding fathers compelled you to the opinion you wanted to reach all along.

In this case, it worked to benefit society. In the Dred Scott case, in Citizens United, it did not.