Thread by @KProtein19, THREAD: While Bostock v. Clayton County is a win for protection against [...]

THREAD: While Bostock v. Clayton County is a win for protection against being fired for being lesbian/gay/transgender, the Court’s decision to anchor its analysis on biological sex is also a win for the sex-based rights of women/girls/homosexuals. 1/21 https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

1. BACKGROUND. This is a consolidation of 3 cases where individuals were fired b/c they were homosexual or transgender--2 cases involving gay men (Donald Zarda [deceased] & Gerald Bostock), and 1 case involving a transgender man (Aimee Stephens [deceased]). 2/21

None of these cases have gone to trial. They were at SCOTUS due to dismissal/summary judgment decisions at the district & appellate court levels.

2. NARROW IN SCOPE. This decision is *only* about whether someone can be fired based on sexual orientation or transgender
3/21

status under 42 U.S.C. 2000e-2(a)(l). The transgender question presented (QP) specifically states this, as does Justice Gorsuch who wrote the majority opinion. The sexual orientation QP is arguably
4/21
https://www.supremecourt.gov/docket/docketfiles/html/qp/18-00107qp.pdf

https://www.supremecourt.gov/docket/docketfiles/html/qp/17-01618qp.pdf

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim

broader.

3. GENDER ROLES. Despite being in one of the QPs, the majority only mentioned stereotypes twice, & only in passing. Zero substantive analysis. Thus, the notion this case is a referendum on “gender roles” is inaccurate. Again, these case have not yet been tried. 5/21

4. BIOLOGICAL SEX--GENERALLY.
Overall, this case does not bode well for the transgender community. It anchors the claim of discrimination on biological sex, while genderists seek to subordinate biological sex to gender identity. However, the objective fact of binary, 6/21

biological sex--incl Justice Alito’s statement (sure to anger genderists) that it is *women* who get pregnant--saturates this opinion. The majority's holding is that discriminating against homosexuals & transgender ppl is impossible w/o taking into account their biological 7/21

sex, & thus is “because of sex” per the statute. That these gay men wld not have been fired had they been *women* attracted to men. This transgender man wld not have been fired had he been a *woman* & said he wanted to “live as a woman.” This is key for sex-based rights. 8/21

5. BIOLOGICAL SEX—SEX-BASED RIGHTS. When future cases come before SCOTUS where transgender men & boys demand to be included in our spaces where we are naked/in a state of undress; our sports; to qualify for our scholarships; apply for employment positions that are 9/21

that are specifically intended for females (bona fide occupational qualification), etc--biological sex will be the basis of analysis, not gender identity. The Court cannot affix its justification of discrimination against transgender ppl to biological sex, then turn around 10/21

& ignore biological sex when these same men/boys want to come into our showers or compete against us in sports.

Further, SCOTUS in Price Waterhouse v. Hopkins & US v. Virginia explicitly rejects sexist stereotypes as valid or appropriate; as these stereotypes 11/21

are the core bases upon which transgender men contend they are women, BDD aspects aside, these arguments shld fail at SCOTUS as justification to allow access to our sex-based rights. Rights which are protected in case law, & supported in legis history by Justice Ginsburg. 12/21

BATHROOMS, SPORTS, ETC. Justice Alito’s dissent explicitly raised concerns that this case cld be interpreted in such a way so as to affect the sex-based rights of women & girls, incl allowing transgender males into female sports/sharing dorms/locker rooms under Title IX; 13/21

in bathrooms & locker rooms at workplaces & beyond; allow gvts to compel use pronouns & forms of address in violation of their 1st amendment rights; elevate Sexual orientation/trans status to 14th amendment intermediate scrutiny level reserved for sex discrimination; etc. 14/21

However, Justice Gorsuch, in response *specifically stated* this opinion *does not* extend to any of these issues/other statutes. Incl issues *within Title VII.* Again, activists may try to argue otherwise; but this is, again, contrary to the plain language of the Court. 15/21

7. THE CRA & SEX ADD'L COMMENTARY. 3 issues:
a. "Because of Sex". Sex should not include sexual orientation or gender identity. The majority’s arguments are unpersuasive, & clearly flout the plain meaning of the phrase “because of sex” at the time the CRA was passed. 16/21

Their Oncale explanation is also weak. Many are happy for justices to legislate from the bench when the decision is in their favor, which speaks to their lack of respect for separation of powers, & the rank hypocrisy they will undoubtedly display when an identical approach 17/21

Is used against them. In this profession, reasonable minds often differ; the fact this view holds the majority does not mean it's correct, as many SCOTUS decisions attest. One of my favorite quotes is from former Supreme Court justice Robert Jackson who said of SCOTUS: 18/21

“We are not final because we are infallible, but we are infallible only because we are final.”

b. Conflict. Gender identity, as trans ppl intend for it to be applied, inherently conflicts with sex. The sex-based rights of women, girls, & lesbians cannot exist if males can 19/21

avail themselves of those same rights based upon their “internal sense of being male/female;" a concept which, BDD aside, is based on sexist stereotypes & does not change their sex.

c. Finally, the CRA is not the appropriate legislation for this & is being used as a mule. 20/21

As noted at the HR 5 hearings, neither age nor disability discrimination are incl in the CRA. Both communities successfully launched concerted efforts to get their own legislation passed, & the LGB & T should have done the same instead of being shoehorned into the CRA. 21/21

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