When the law says “sex” it includes LGBT

The Supreme Court ruled today that when the Civil Rights Act of 1964 forbids discrimination based on sex it means that sexual orientation and gender identity are included. Discrimination against workers based on being LGBT is forbidden. The ruling was 6-3. That includes the four liberal justices plus John Roberts and, surprisingly, Neil Gorsuch. It was Gorsuch who wrote the opinion. Alito and Thomas dissented and Kavanaugh wrote a separate dissent.

Yes, Gorsuch is the first justice appointed by the nasty guy. However, a transgender person who heard the oral arguments is not surprised that Gorsuch took our side.

Some of the phrases Gorsuch used:

It is impossible to discriminate against a person for being homosexual or transgender without discriminating based on sex.

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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

The limits of the drafter’s imagination supply no reason to ignore the law’s demands.

Nina Totenberg on NPR said Gorsuch added a little caveat at the end, suggesting that it might be OK to discriminate on religious grounds. That will make the Catholic bishops happy.

Selena Simmons-Duffin, also on NPR, compared this legal ruling with a rule change issued by the nasty guy’s Department of Health and Human Services last Friday. The ruling says that health care providers may refuse care for transgender people if it conflicts with their religious beliefs.

Simmons-Duffin said the ruling by the Supremes has no direct bearing on the health care rule because this decision affects only employment. But when the rule is challenged (and the ACLU says it will be) the Supremes now have placed a marker on how to decide. Alas, that means an actual court challenge. And this court challenge took seven years and two of the three plaintiffs have already died – Aimee Stephens just a few weeks ago.

Simmons-Duffin says the timing of the HHS rule was not a coincidence. One could wonder why the nasty guy administration want to issue a rule change when they know the supremes are about to issue a decision. Even so, HHS intentionally issued ahead of the Supremes.

The nasty guy is reversing Obama’s rules where Obama specifically said when the law says “sex” it includes LGBT. And now the Supremes are saying what Obama said.

Kerry Eleveld of Daily Kos says this decision is a double blow to the nasty guy:

The ruling confounds the Trump administration both legally and politically. Not only did Trump and Co. argue in favor of perpetuating discrimination against LGBTQ Americans and lose, the fact that Gorsuch penned the majority opinion kneecaps one of Trump’s key appeals to religious conservatives—that he’s delivered them the perfect justices to the Supreme Court.

Joan McCarter of Kos adds that when Kavanaugh was confirmed by the senate he reportedly got the vote of Maine Senator Susan Collins by telling her he considered legal same-sex marriage to be settled law and implied he would protect LGBT rights.

Not only did Kavanaugh dissent, he felt he had to write his own dissent to adequately say what he thought.



Kennett High School in the White Mountains region of New Hampshire did have a graduation ceremony, though an unusual one. Graduates in cap and gown, along with parents, boarded a ski lift up Cranmore Mountain. At the top school staff greeted the graduate. The principal called the name. The graduate picked up the diploma off a music stand. A volunteer sanitized the chair. The staff gave an official goodbye. And the graduate went back down the mountain. One the way up and down the graduate had a chance to see classmates not seen in three months. It only took six hours to get all 160 graduates up and down. The class of 2021 wants to do the same even if there is no pandemic.