Sex is the text
LOOKING ASKANCE - Joseph Gonzales (The Freeman) - June 21, 2020 - 12:00am

Barack Obama’s legacy to the LGBTQ community before he left office was the Supreme Court case that ultimately allowed gay marriage, Obergefell v. Hodges. At that time, the Supreme Court ruled 5-4 that a state couldn’t deny a citizen’s right to marry - and so all states and some territories had to allow American citizens the ability to marry someone of the same sex.

Trump’s term, regardless of how misogynistic and racist he is, will be remembered for that time when the US Supreme Court ruled that it was illegal to discriminate against employees on the basis of sexual orientation.

This is fresh off the press: A Supreme Court that had already been seeded with Trump conservative appointees has just thrown a grenade on all the conservative Republicans, who may have thought they already controlled the direction of the Supreme Court.

Disregarding the make-up of the court that counts five justices in the conservative wing and only four liberals, the court ruled 6-3 that employers should respect the sexual preferences of their employees, and firing them on that basis would be penalized.


This is the case of Bostock vs. Clayton County, Georgia, where Mr. Bostock, a government employee, decided one day to join a gay softball league. The county felt it was inappropriate for a civil servant to flaunt his sexual orientation, and fired him. (Also in the suit was transgender woman Aimee Stevens, who was fired for deciding to come to work in women’s clothes, and skydiver Donald Zarda who just mentioned at work that he was gay.)

In different lawsuits filed across different states, the trio sought redress under laws banning discrimination. After all, anti-discrimination laws on the basis of sex have already been present since the 60’s in America, but that’s where the debate centered. According to oppositors and discriminatory employers, sex meant only male or female. So, employers couldn’t fire female employees for being female, but they could fire gay employees for being gay, lesbian, transgender, or whatever.

The argument was that in the 1960’s, gays and lesbians weren’t even visible, so that when the anti-discrimination law was passed in that era, legislators couldn’t have been thinking of protecting cross-dressers and poofs. But that’s not what the justices ruled. According to the court, speaking through ponente Neal Gorsuch (a Trump appointee):

"An employer who fired 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… Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result... But the limits of the drafters' imagination supply no reason to ignore the law's demands."

So essentially, it was the text of the law that was important for the justices, and not the spirit or intent of the law. (Hence, the use of the term “textualist” to denote judges who rely on the words rather than intent to make their decisions. As Justice Gorsuch succinctly says, “Only the written word is the law, and all persons are entitled to its benefit.”)

Sex therefore means, at least for the American legal system, not just the binary definition that we are taught throughout our formative years, but can cover a gamut of meanings, including even transgender identity.

The conservatives must be reeling from this unexpected decision defining sex in so many ways, and scrambling to see what other damage they might encounter from this unpleasant surprise. (And true enough, two days later, the Supreme Court ruled for undocumented immigrants relying on Obama’s DREAM act, and allowed them to stay in the US for the meantime. Trump and his trumpettes are fuming.)

What does that mean for us? More impetus for the SOGIE bill - if our legislators can ever muster the political will.

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