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Title IX (&VII) and the Back and Forth over Discrimination Protections for Gays, Lesbians, Bisexuals, and Transgendered

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Boydstun

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Bostock v. Clayton County – Employment-nondiscrimination according to sexual orientation or gender change (2020). I agree with the dissent of Justice Alito in this case, excepting his remarks in B2 and his silliness of concern, on down in his dissent, over transgendered persons and locker-rooms/bathrooms. 

The expansion of Title IX protection against discrimination based on sex in educational institutions receiving federal funding to include discrimination against Gays, Lesbians, . . . is currently being challenged in court by States.

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I disagree with Alito with respect to his reasoning, though not the bottom line. This is not a proper law, and that is the only morally acceptable argument against the law. If we set aside morality and ask “what do the words mean”, Alito claims that the court’s “duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written’”, but this again is fallacious reasoning. The court’s duty is to interpret terms according to their objective meaning (yes there are myriad versions of "originalism" out there that just won't die), thus not engaging in anachronistic reasoning that revolvers are not protected by the Second Amendment because they did not exist at the time. It does not matter whether

it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time”

It would be hard to find a reasonable person in that era who did not understand that “because of sex” literally includes “because of being a male, or because of being a female”. The concept of “sexual orientation” is legally irrelevant, the result follows from what it literally means to be a homosexual or a heterosexual – verbatim from Greek, “same sex” and “different sex”. The search for dictionaries saying “including sexual orientation, sexual preference, gender whatever that is…” is equally pointless. Sticking strictly to the classical physiology-based definition of sex, any appeal to “homosexual” or “heterosexual” automatically includes reference to a person’s sex (forbidden) but not age etc. “Male seeking male” and “Male seeking female” equally refer to natural sex. Being biologically male and attracted to a biological male automatically includes “being biologically male”. If A&B is true, then A is true.

So I am looking for the details of how one can agree with what follows from his dissent, that if A&B are true, then A is false.

 

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Meaning of words is always one of those "to whom?", I'd say. When a law is drafted and ratified, there can be some amount of ambiguity in its terms, and this might even be necessary for agreements to make law or treaty. I don't know of studies on that. But mainly the meanings in the proposed law are enough shared by those arguing over the law, that they are not arguing over nothing as far as what the words mean in reality. Prohibition of (job-irrelevant) discrimination on the basis of sex surely did not mean, in the minds passing the law at that time, that employment discrimination against same-sex oriented people was being prohibited. True, the way of writing and communicating this note was not envisaged by those who ratified the first amendment to the Constitution. But the function in human existence is the same as pamphlets and newspapers familiar to the founders. In the case of title VII, behind nondiscrimination according to sex, was the idea of nondiscrimination as between men and women, surely not at that time the idea of nondiscrimination against same-sexers as distinct from opposite-sexers. That whole dimension was simply not under consideration, only the idea of nondiscrimination as between men and women. I should review Tara Smith's book again on objective law in jurisprudence and see what implications it might have for reasoning in this case. Especially, any implications for how restricted to intentions of the legislators the jurists must be and, therefore, how much they must leave to current legislators to amend the old law.

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I would assume that was not in the forefront of the original political motivation for the law. Then again Scalia has provided quite cogent arguments against appeal to assumed original intentions or purposes of lawmakers. Indeed, the idea that the 535 individuals who enacted this law shared some common mental state is a dubious assumption. To quote Scalia who approvingly quotes Frankfurter quoting Holmes, “Only a day or two ago-when counsel talked of the intention of a legislature, I was indiscreet enough to say I don’t care what their intention was. I only want to know what the words mean”.

There is nothing in the meaning of “sex” that allows two interpretations of whether the concept “homosexual” refers to the concept “sex”. There is nothing in the law that is ambiguous. I allow that perhaps the proponents of the amendment either failed to understand a consequence of their wording, or (more likely) they saw it and decided to not make an issue of it. In a democratic society, when we discover that a previously-written law fails to express that “original intent”, we can remedy it by changing the wording of the law to more clearly match that intention. The majority opinion identified the meaning of the words in the law, the dissent identified a plausible claim that this was an unforeseen consequence of the words, so if Congress is not happy with that outcome, it can write an amendment to the law.


 
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The problem is simple.  Every individual has the same individual rights as everyone else and should simply be treated that way. Why would it ever even pop up what someone's sexuality is, especially in regard to law? It's as irrelevant as the color of someone's skin, the  day they were born (assuming they are an adult), the color of their hair, whether they are some sort of religious mystic or someone that sticks to reality itself instead, the list goes on and on outside of some sort of extremely specific context where it specifically applies.  And if there are issues with "wording" of any law there should be a requirement for lawmakers to provide objectively correct and properly in context definitions for any non-standard use of concepts. 

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3 hours ago, EC said:

The problem is simple.  Every individual has the same individual rights as everyone else and should simply be treated that way. Why would it ever even pop up what someone's sexuality is, especially in regard to law? It's as irrelevant as the color of someone's skin, the  day they were born (assuming they are an adult), the color of their hair, whether they are some sort of religious mystic or someone that sticks to reality itself instead...

All true. "Why would it even pop up what someone's sexuality is, especially in regard to law?"

Certainly. But it does and will for irrational choices made by some.

The corollary being, the objective law must equally protect the individual rights of even those who ( with e.g. employment) discriminate against - or favor - preferences based entirely or partly on applicants' sexuality/gender. Else, no one is free.

 

Edited by whYNOT
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The reason why it would or does pop up is that the government passes laws without adhering to any theory of rights whatsoever, other than the tautological “we hereby declare / rescind the following ‘right’”. So not only does that law prohibit employment decisions based on “sexuality” or “sex”, it likewise prohibits decisions based on race, religion, color and national origin. But it does not prohibit decisions based on state origin (“Ain’t gonna hire no damn Iowans!”), family name (“Ain’t gonna hire no damn Hatfields!”) or education (“Ain’t gonna hire no damn college kids!”). These are the cards that a majority of the 535 lawmakers have handed us, if you don’t like it, you (and 100 million others) just need to vote in better lawmakers.

Generally speaking, Congress is unwilling or incapable of passing laws that control how courts interpret laws. The most stupid way that they do so (which has proven entirely acceptable to the courts) is to redefine words, saying “In this section, “person” means…”. As long as there is some statement of the scope of a redefinition (paragraph, section, title), this is okay with the courts. It is not objectively okay, but it’s legal. Sometimes they pass laws declaring that courts have no authority to review a law, a clause which will get slapped down. The courts always have authority to review a law.

There is a legal principle applicable to criminal law, “lenity”, that holds that when a law is ambiguous, the ambiguity is resolved in favor of the accused. Therefore if a crime is defined in terms of whether an action takes place near a “bank”, this could be understood to be a financial institution or the edges of a river, and an accused would under a strict application of lenity be acquitted because the law does not clearly say which sense of “bank” triggers prosecution. This is where legislative intent and other atrocities rears its ugly head. The “solution” adopted by courts is to say that a law is ambiguous only in case there is no suggestion anywhere as to the intended meaning of the statute, therefore lenity is rarely applied, and Congress has no incentive to write clear and unambiguous laws. Indeed, Congress often deliberately leaves it to the courts to effectively rewrite laws by declaring a specific interpretation (which can be later overturned, since “settled law” is a legal fiction).

If Congress were so inclined (it is not) it could pass meta-rules of interpretation, saying explicitly when “lenity” will be applied. One problem is that Congress cannot compel Congress to act in a particular fashion. At least, not without a constitutional amendment limiting the power of Congress. It also cannot compel the courts to act a particular way, but what it can do is say “This is what we mean by that”. If the courts decide to pay attention to “what Congress said”, then a legally-enacted meta-rule of statutory interpretation is the one possible way to create a requirement for lawmakers to provide objectively correct and properly in context definitions.

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