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Comment by Someone1234 | Hacker News Reader

> example of how courts evolve the definition of phrases as society evolves

They haven't evolved anything. Please read the court's opinion, the logic they use to describe why "sex" from Title VII isn't divisible ("but for" test) from LGBT rights is extremely difficult to refute.

Nothing has "evolved." They're arguing that you cannot descriminate against LGBT people without ALSO descriminating against someone's sex, which is unlawful. Even the dissenters weren't really able to poke holes in that logic, instead ignoring the whole issue of how someone's sex determines if they'd get decriminated against in some circumstances and not others (e.g. employers banning being married to a women is only "banned" for one gender and not the other, making it sexual descrimination).

They give numerous examples and go into great detail about why it is just sexual descrimination with extra steps, exactly like Title VII was expressly designed to outlaw.

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(As the poster you're responding to) I don't disagree, but I also see that those who are opposed to this decision are inclined to frame it as the courts re-defining the word sex (check how Fox News covers this over the next few days). You can argue "it's not a redefinition" and cite the courts decision as basis, but someone who wanted a different opinion is likely to say "the court came to that decision because they redefined the word." My counter to that persons argument is whether we call it redefinition or not courts exist to interpret things, and there is nothing new in them doing so here and now. That's their job, and that's how we got the concept of eavesdropping.

> employers banning being married to a women is only "banned" for one gender and not the other, making it sexual descrimination

To be fair, the textual argument isn’t iron clad. How does that logic apply to bisexual people?

I think the result is correct: the Supreme Court has already interpreted “discrimination based on sex” to include “discrimination based on deviation from stereotypical characteristics of that sex.” Under that gloss, it’s a much easier application to gay and transgender discrimination. But it’s far from clear cut.

There are a few outstanding questions that will test this. Can someone discriminate against an asexual or bisexual person? If so, then this logic doesn't protect LGBT but only LGT, which is something of an important distinction in social circles. If not, then it seems that they aren't being honest about their justification. Granted, I haven't read the full opinion and only a summary, so these corner cases may be handled.

The civil rights act has been on the books for 64 years; but has not been interpreted this way historically.

It has always been interpretted exactly this way.

The Civil Rights Act Title VII bans employment descrimination on the basis of sex, you cannot descriminate against an LGBT person without also descriminating on the basis of sex.

All today's ruling did was clarify to the lower courts that sex descrimination with extra steps and obfustication is still sex descrimination. Being LGBT doesn't remove your rights not to be sexual descriminated against under Title VII.

Again, I implore people to read the actual court's opinion.

to play devil's advocate here, that argument breaks down for bisexual people. But I'm aware that the court's opinion actually handles this because of prior precedent holding it illegal to discriminate against gender norms.

I think this is the second time I've seen this sort of reply, and truthfully I don't understand? Why wouldn't the argument apply for bisexuals?

If someone fires you because you're bisexual, they've still committed sex discrimination: they fired you because you do not fully conform to gender stereotypes (the stereotype being that gender A dates gender B; and you as the employee may date A and B).

Consider a generic action FOO. Suppose Alice and Bob are identical in all respect except that Alice is female and Bob is male; and Alice is heterosexual.

Both Alice and Bob do FOO. If you let Alice do FOO, but fire Bob for doing FOO, you have commited sex discrimination, because you would not have fired Bob but for his sex. However, if you were to fire both Alice and Bob for doing FOO, then you are treating both males and females equally, so there is no discrimination based on sex.

In the case where Bob is homosexual, FOO=experiences attraction to men. When Alice does this, she is fine. When Bob does this, he gets fired. Bob was fired for being male.

In the case where Bob is bisexual, FOO=experiences attraction to men and women. Bob still gets fired, but this time Alice does not do FOO, so there is no comparison to base a sex discrimination case on. If Alice were to do FOO, she would be bisexual, and fired under the same policy that Bob was. Either way, there is no case here where a male and female do the same thing but get a different result.

Thank you! I think I understand what you’re trying to say here, and it also clarifies why I found this response confusing.

I think this idea of a loophole is too caught up in actions leading to discrimination; and also the specific setups of the tests that the Supreme Court laid out in their ruling.

There need not be a specific counter-example within an organization to compare against when determining if an action was discriminatory or not. And moreover they weren’t really talking about “actions taken that are incongruous with sex stereotypes.” My understanding of the ruling (after reading it) is that if an employer fired you for being gay/bisexual, even just for stating the fact that you are, that would still amount to discrimination based on sex stereotypes.

Then again, I’m sure finer legal minds than mine will find any such loopholes that do exist over the course of the next two years. >_<

Looks like it hasn't been interpreted by the supreme court at all, really:

https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964#Judic...

The only other older case was in the late '80s, and it had a similar interpretation as the ruling today: https://en.wikipedia.org/wiki/Price_Waterhouse_v._Hopkins

> (e.g. employers banning being married to a women is only "banned" for one gender and not the other, making it sexual descrimination)

What about in a state that allows same sex marriage?

Such as every state?

Yes, for example. Is it sexual discrimination to refuse to hire someone due to them being married to a woman in a state that allows a man or woman to be married to a woman?

It is sex discrimination to refuse to hire someone due to them being married to a woman if you would hire someone of that person's opposite sex despite them being married to a woman.

To be even more explicit about this, an employer cannot refuse to higher only married lesbians. A cisgender man married to a woman could bring a suit for sex discrimination.

Discrimination is defined by what's called "disparate treatment," that is, treating individuals differently because of their sex. It doesn't relate to what is legally permissible outside that situation.

But, is it discrimination if the employer could care less what the applicant's sex is, and only decided on whether the spouse was female?

Edit: So the company has only employees that are either: not married, or only married to a male. How does this apply?

The answer to that question would depend on how the employer has treated other applicants of the opposite gender in same situation (that is, being married to a female). The law hinges on disparate treatment; it does not account for what the employer cares about.

There isn't precedent for discrimination based on the gender of spouse specifically. In general, to answer the question "Is it discrimination?" It's helpful to apply the replacement test: if it were someone else who differed in only one non-work related aspect, would that person receive the same outcome?

I think what you're trying to get at in your edit is more in line with Pre-Employment Inquiries and Marital Status. [0]. The EEOC puts it this way:

"It is clearly discriminatory to ask such questions only of women and not men (or vice-versa). Even if asked of both men and women, such questions may be seen as evidence of intent to discriminate against, for example, women with children."

There established precedent for "sex-plus" discrimination [1], whereby the claimants sex "plus" another factor brings it closer to a Title VII claim.

The TL;DR answer to your question is that nobody has brought a case (that I can find) with those particular details, but you can't treat men differently than women and vice-versa, and that includes gay and trans men and women

[0]https://www.eeoc.gov/pre-employment-inquiries-and-marital-st... [1]https://www.businessmanagementdaily.com/52309/title-vii-sex-...

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