They are basically right. It is unimaginable anyone writing the 1964 Civil Rights Act had transgenders in mind.
(1) People can't have same sex relations
(2) Women can have relations with men but men can't have relations with men.
Practically they are the same, but (2) discriminates on the basis of sex while (1) does not.
If they are the same then how can one way of stating it be discriminatory and the other not discriminatory? It's just word games. If the effect is discriminatory why does it matter how you wrote the law?
I worry that going too close to the line of "what would a house member from rando time period want" becomes a strange place of conjecture.... and frankly relies heavily on a sort of mind reading / our own biases of the past... and legislators who are not bound by reason, existing laws, or any sort of absurd contradictions.
But perhaps that's always the judicial quandary. How closely to follow the letter of the law passed when it may not pass a constitutional test, or even just logic test.
https://en.wikipedia.org/wiki/List_of_LGBT_actions_in_the_Un...
> "The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574.
> "While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message.
> "Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn." (emphasis added)
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From my understanding, the court is looking at this law as it is interpreted in "plain terms", which is from the point of view of "how would an average Joe or Jill on the street understand x?", in this instance, x being title VII's concept of "discrimination based on SEX".
The way the court sees it, if you fire a GUY for liking GUYS, but don't also fire a GIRL for liking GUYS, that is different treatment based on sex.
They then state that if you respond, "Woah, that may be a valid interpretation of the words, but its never been APPLIED like that before", tough luck. Its the court's job to re-interpret and clarify rules and fully within their ability to do so.
(Edit: I re-read the opinion and found a different summary more appropriate.)
[0]:https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Gorsuch, in the majority, asserts that textually, the words written would and do indeed cover discrimination of gender identity and sexual orientation by extension of sex. Textually meaning regardless of whatever the original intent was, ie it doesn't really matter if they were considering transgender people in that list
Only flint-lock muzzle loaders allowed.
Rotary cannons were not invented until the mid 19th century, so long after the American Founding Fathers and the drafting of the first amendments to the Constitution.
That said, clearly these classes should be afforded the same protections; I'm just more comfortable with our legislators making that explicit in the law rather than courts arbitrarily expanding the scope of the law. There is at least one attempt, [1], that is still in progress; hopefully now that the courts have made it moot it will be easier to pass this to codify the result.
[1] https://www.congress.gov/bill/116th-congress/house-bill/5
Please read the decision, it's a very straightforward reading of the law. Transgender discrimination is sex discrimination by definition.
You throw away A LOT of law without textualism.