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society

Bostock: What Does Sex Mean in Antidiscrimination?

The SCOTUS decided to recognize the law protecting employees from firing for discrimination on the bases of sexual orientation and gender identity.

The decision hinges on the meaning of sex in the statute banning discrimination on that basis.

The question arises, what does it mean to ban sex discrimination? And that’s what the court had to answer.

Imagine for a moment you are trying to hire a person to push buttons in your factory. The applicants all come in dressed in those big mascot costumes. Their names are all types of clouds, like Cumulonimbus and MicroAmazon. But, you, being of the false belief that women are better at pressing buttons, want to hire a woman for the job. So you try to find some way to decide one mascot is a woman, and hire that one.

But over the course of ten years, you never do find out who it is in that mascot suit pressing all those buttons. It remains a mystery.

That is what the Supreme Court decided. We all have to buy and wear mascot costumes. I, personally, will be getting a costume to look like a Supreme Court justice, so you’ll have to find some other idea. Sorry.

Anyway, the above situation is meant to elicit the basic idea of expression. Without expression of sex, there is no discrimination of sex, because nobody would know how to discriminate on that basis. This happens to be true for the other protections in Title VII, as well, though oftentimes race and sex are assumed on some apparent characteristics, ultimately it comes down to expression. And religion, of course, always relies on expression, as nobody knows what anyone truly believes and only knows what they espouse. Also, national origin, which relies on express documentation and perhaps an accent or knowing a lot about your home country.

Without expression of these characteristics, there is no basis to discriminate. One could still be a bigot without, as in the example trying to hire the mascot with a woman inside, but one would never know if one was a successful bigot. And, besides, unsuccessful bigotry still violates the law against discrimination. If you fire someone because you believe they are one of those things, even if they aren’t, that’s still discriminatory.

Okay. So once you arrive at the realization that what sex really means is expression of sex, what is that? People don’t generally go around introducing themselves: “Hi, I’m Silver Lining and although I am dressed as a rubber chicken, I’m actually biologically female.” People almost never say what sex they are. Think about it, when was the last time you said aloud what sex you are? (And no cheating and saying it right now!)

Expression of sex, your social sexual identity, is based on some behaviors including how you dress, speak, your sexual orientation, the type of bicycle you ride, etc. Now, some people may express their social identity differently, by biting the heads or feet off the gummy bears first, for example. The court has to decide where to draw the line on what is a protected expression of sex, and what is just being a bit weird with your candy, dude.

And that analysis, which wasn’t really done in Bostock, probably comes down to commonality of a type of expression. That is, just because you express yourself in a unique way doesn’t mean it’s not protected. But is that expression of a type that is common to humans generally expressing their sex?


Anyway, the election is in nineteen weeks.

Categories
society

Some Supreme Court Term Stats

  1. Gorsuch recently surpassed James F. Byrnes’ tenure of 452 days on the court, but has a ways to go before he catches up with John Rutledge’s 563 days (26 October 2018).
  2. Thomas will become the longest sitting justice after Kennedy retires (effective end of July 2018). To score the all-time sittingest justice (held by William Douglas) he would have to remain for another ~3600 days (20 May 2028).
  3. We can call the court “old” or “young” based on whether a majority of justices have sat longer than the median (5740 days) justice sat. The court is currently “young,” and will become slightly younger with Kennedy being replaced.
  4. Assuming no other changes to the court, it will become “old” on 20 October 2021, when Alito will have sat longer than the median.
  5. The current court has three sets of “twin justices”—justices who joined the court within about a year of one another: Ginsburg and Breyer (1993, 1994); Robert and Alito (2005, 2006); and Sotomayor and Kagan (2009, 2010). (Thomas was a twin with Souter, but the latter has left the court.)
  6. Looking at “twins” from 1950 on, the average difference between their departures is around 20 years. It’s likely either Gorsuch or Kennedy’s replacement will leave the court at least a decade before the other.
  7. Since 1950, the longest stretch without a seating was 4075 days (1994-2005). That drought was the second longest (longest was 1812-1823, 4228 days). To break the record would put the next seating sometime in 2030.

Kennedy’s replacement will likely shift the direction of the court. The new court could imperil long-standing and important matters including voting rights, women’s rights, healthcare, immigration, and even the ability of the government to fight public corruption.

But a shift in power tends to be balanced in other ways. As the court moves right (as seems likely), it will begin to face cases on new laws drafted by an increasingly liberal legislature. It will also face briefs that employ its old rulings in new ways.

In short, the Republican dream of a far-right activist court will cost them seats in Congress and will ultimately cause the people to push for legislative and constitutional remedies to any bad decisions that come forth.

Categories
society

Garland v. Gorsuch (per curiam)

Diehealthy.org Court of the United States

Merrick Garland v. Neil Gorsuch

ON PETITION FOR WRIT OF CERTIORARI TO THE U. S. SENATE

No. 17—110074. Decided 1 April 2017

Per Curiam.

In both Half-child v. King Solomon, -1179 U. S. 74 (c. 910 BCE), and The nameless, eternal Tao v. Lao Tzu, 16996 U. S. 497 (9349), this court held that “in matters of the eternal law, there shall always be a higher court.” Id. at 93-6.

That is the path this case takes to reach us today. It has accelerated out of the U. S. Senate, escaped the earth’s gravity well, and sped past the Van Allen Belt. We have received it and have decided.

The lower court, which is, unsurprisingly, the U. S. Senate, holds these two respected jurists in mortal combat. The body of Senate Republicans has armed thermonuclear warheads in preparation for what they intend to couch as a retaliatory strike against the body of Senate Democrats. The body of Democrats, for their part, are preparing to filibuster (Can we write such a word?! Pardon us!) the nomination of Gorsuch.

But we must go back. Prior to the Gorsuch nomination, there was another nominated for the seat upon the U. S. Supreme Court: Merrick Garland. And in that nomination… nothing happened! No meetings, no hearings, no vote! This is a tough case. We should have had lunch first.

We are reminded of an earlier case, Bender v. Bender’s Shiny Metal Ass, 542 U. S. 901 (2004), in which another body sought relief against itself. There, ruling contra to our holding in Dandy v. Fine, from the lost and found volumes (available for five proofs of purchase plus shipping and handling), we found that, “You have to love yourself first.” Bender at 904-77. Good advice, but in this case? We’re just not sure that the Senate is ready for polyamory.

Consciousness expansion? Please. We tried that back in the 60s, and what did it get us? Ronald Reagan!

Come on, think, damn it!

This is all your fault! You put them up to this!

The thing is, Ow!, the judge—Off! Get off my foot, damn it!

You started it!

I did not! You—wait! Judge off! That’s it: an old-timey judge off!

The U. S. Senate shall convene both jurors Garland and Gorsuch, and every Senator will provide exactly one exhibit to be adjudged by each (a child’s drawing, an irregular mole on their person, burnt-toast rendition of maybe-Jesus, etc.). The judgments of both will be recorded and presented against a panel of outside experts, and scores will be rendered. Upon the delivery of the average scores of each, the Senate shall vote between the two, either for one or for the other one, without knowing which judgments and scores belong to which robe.

The judgment of the U. S. Senate is vacated, and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.