This week the Supreme Court came down with the decisions in the LGBT cases, which I previously discussed here. The decision will have an absolute huge impact on people with disabilities in both positive and possibly negative ways. Before moving onto the decision, I do want to say that my wife and I and my daughter for the last seven years have been members of Congregation Bet Haverim, which was originally founded as the home for the LGBT community in Decatur, Georgia some 25 years ago. My daughter and I have also taught at the religious school there for the last several years. So, on a policy level I couldn’t be happier about the decision that came down yesterday. Did they get it right on the law? I will leave that for readers to decide after going through the reasoning of each of the opinions, which I explore in detail. I will say that I always enjoy reading Justice Gorsuch’s opinions. Regardless of whether I agree with him or not, his writing is one of the most accessible I have seen for a judge. I felt the same way when he was on the 10th Circuit Court of Appeals. For those interested in where Justice Gorsuch might stand on the rights of people with disabilities excluding this case, check out this blog entry. This blog entry will be divided into the categories of Justice Gorsuch’s majority opinion; Justice Alito’s dissenting opinion; Justice Kavanaugh’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. I will say that you will want to read at a minimum Justice Gorsuch’s majority opinion section and the thoughts/takeaways section.

 

I

Justice Gorsuch’s Majority Opinion

 

  1. An employer who fires an individual for being homosexual or transgender terminates that person for traits or actions it would not have questioned in members of a different sex. That is, sex plays a necessary and undisguisable role in the decision, which is exactly what title VII forbids.
  2. While it is true that the Civil Rights Act might not have anticipated that it would lead to the protection of those in the LGBT community, it is also likely that the drafters of the Civil Rights Act were not thinking about consequences that became apparent over the years, including prohibition against discrimination on the basis of motherhood and its ban on sexual harassment of male employees.
  3. The limits of the drafters’ imagination supply no reason for ignoring the law’s demands. When the express terms of the statute give one answer and an extratextual consideration another, it is no contest. Only the written word is the law, and all persons are entitled to its benefits.
  4. Title VII of the Civil Rights Act prohibits employers from taking certain action because of sex. The ordinary meaning of “because of,” is “by reason of,” or on, “account of.” That means, title VII’s “because of,” test incorporates the simple and traditional standard of but for causation.
  5. In other words, a but for test directs us to change one thing at a time and see if the outcome changes. If it does, you have found a but for cause.
  6. Oftentimes, events have multiple but for causes. For example, if a car accident occurs both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, each is a but for cause of the collision.
  7. So long as the plaintiff’s sex was one but for cause of that decision, that is enough to trigger the law.
  8. If Congress didn’t want to deal with but for causation, it could have said as much. For example, it could have added solely to indicate that actions taken because of multiple factors do not violate the law (our blog has discussed numerous times how the Rehabilitation Act, 29 U.S.C. §794, works that way). Another possibility is that Congress could have used the term “primarily because of,” to indicate that the prohibitive factor had to be the main cause of the defendant’s challenge employment decisions. However, Congress didn’t do that. If anything, Congress moved in the opposite direction by amending title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait, such as sex, is a motivating factor.
  9. The but for causation standard continues to afford a viable, if no longer exclusive, path to relief under title VII.
  10. The term “discriminate,” in 1964 meant roughly what it means today. That is, to make a difference in treatment of favor (of one as compared with others). So, to discriminate against a person would seem to mean treating that individual worse than others were similarly situated. In such cases, the Supreme Court has also held that the difference in treatment based upon sex must be intentional.
  11. Title VII focus is on individuals and not groups. What is an individual is has not changed from 1964. That is, a particular being as distinguished from a class, species, or collection.
  12. Where an employer fires a woman for being insufficiently feminine and also fires a man for being insufficiently masculine, the employer fires an individual in part because of sex.
  13. An employer violates title VII when it intentionally fires an individual employee based in part on sex. It simply doesn’t matter that other factors besides the plaintiff’s sex contributed to the decision. It also doesn’t matter if the employer treated women as a group the same when compared to men as a group.
  14. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee (if changing the employee’s sex would have yielded a different choice by the employer), then a statutory violation has occurred.
  15. An individual’s homosexuality or transgender status is not relevant to employment decisions because it is impossible to discriminate against the person for being homosexual or transgender without discriminating against that individual based on sex.
  16. Where you have a man and a woman both attracted to men, if the employer fires a male employee for no reason other than the fact that he is attracted to men, the employer discriminates against the male employee for traits or actions it tolerates in his female colleagues. In other words, in that situation the male employee is fired in part based upon the employee’s sex and the affected employee’s sex is a but for cause of his discharge.
  17. In the situation of a person who is identified as a male at birth now identifies as a female, if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates an employee as female at birth. In that situation, the individual employee’s sex plays an unmistakable and impermissible role in the termination. In the situation of a person who is identified as a male at birth now identifies as a female, if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee female at birth. In that situation, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
  18. Homosexuality and transgender status are inextricably bound up with sex.
  19. It doesn’t matter when an employee treats one employee worse because of an individual’s sex that other factors may contribute to the decision.
  20. Title VII simply doesn’t care when two causal factors may be in play. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met and liability may attach. For example, intentionally burning down a neighbor’s house is arson even if the perpetrator’s ultimate intention or motivation is only to improve the view. The same can be said for intentional discrimination based on sex violating title VII even if it is only intended as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.
  21. Where an employer discriminates against homosexual or transgender employees, the employer is inescapably intending to rely on sex in the decision-making.
  22. Title VII makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of title VII.
  23. It is no defense for an employer to discriminate intentionally against an individual only in part because of sex. It is also no defense that the employer may happen to favor women as a class.
  24. A world that appears evenhanded at the group level can prove discriminatory at the level of individuals.
  25. An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention or motivation.
  26. It is irrelevant the label put on what an employer might call its discriminatory practices or what else might motivate it. That is, labels and additional intentions or motivations don’t make a difference when it comes to title VII liability.
  27. The plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. So, it has no significance if another factor might also be at work or even plays a more important role in the employer’s decision.
  28. Sorting out the true reason for an adverse employment decision is often a hard business, but none of that matters in this case.
  29. It doesn’t matter that in common parlance a person may say that they were terminated because of sexual orientation or trans status rather than saying that they were terminated because of sex. In conversation, the speaker is likely to focus on what seemed most relevant or informative to the listener. So, an employee who had just been fired is likely to identify the primary and most direct cause rather than list every single but for cause. To do otherwise, would be really tiring. Even so, conversational norms or conventions do not control title VII’s legal analysis, which focuses on whether sex was a but four cause.
  30. Where sex isn’t the only factor or maybe even the main factor, there still can be liability under title VII if it is a but for cause.
  31. Nothing in title VII turns on the employer’s labels or any further intention for motivation for its conduct beyond sex discrimination.
  32. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Anyway you slice it, the employer intentionally refuses to hire applicants in part because of the affected individual’s sex regardless of whether it learned of the applicant’s sex in the first place.
  33. Discrimination based on homosexuality or transgender status cannot happen without it also being discrimination based on sex.
  34. Title VII prohibits all forms of discrimination because of sex regardless of how they manifest themselves or what labels someone might attach to them.
  35. Just because Congress had never successfully added sexual orientation to title VII, that is not controlling. That is, speculation about why a later Congress declined to adopt new legislation offers a particularly dangerous basis and for the interpretation of an existing law a different and earlier Congress did adopt.
  36. Title VII’s plain terms and the Court’s precedents don’t care if an employer treats men and women comparably as groups. If an employer fires both lesbian and gay men equally, that doesn’t diminish their liability but doubles it.
  37. Often in life and in law, two or more factors combined to yield a result that could’ve also occurred in some other way. For example, if it’s a nice day outside and your house is too warm, you might decide to open the window. Both the cool temperature outside and the heat inside are but for causes of your choice to open the window. That decision doesn’t change just because you would’ve also opened the window had it been warm outside and cold inside.
  38. For employer’s to say that sex must be the sole or primary cause of an adverse employment action for title VII liability, that suggestion is at odds with everything known about title VII.
  39. Imposing a stricter causation test for use in cases involving sexual orientation or transgender status would create a curious discontinuity in the law to put it mildly.
  40. Where the meaning of a statute is plain, the Court’s analysis ends there. That is, people are entitled to rely on the law as written without fearing that the court might disregard its plain terms based upon some extra-textual consideration.
  41. Legislative history is meant to clear up ambiguity not create it.
  42. The fact that a statute has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity, rather it demonstrates the breath of legislative command. It is the provisions of legislative command rather than the principal concerns of legislators that govern judicial interpretation.
  43. When a new application emerges that is both unexpected and important, the dissenting opinions would have the question merely be pointed out and referred back to Congress while declining to enforce the plain terms of the law in the meantime. That type of reasoning has long been rejected by the Court.
  44. It doesn’t make sense to say that a law is only as good as far as legislators intended its expected applications or its purpose at the time the law was enacted.
  45. It isn’t necessarily clear that no one in 1964 or for some time after would have anticipated a holding that title VII protects people from discrimination if they are attracted to people of the same sex or are transgender. Shortly after title VII was passed, gay and transgender employees began filing title VII complaints. In the debate over the equal rights amendment, some people argue that the equal rights amendment might also protect homosexuals from discrimination.
  46. Often lurking behind the objection about unexpected applications, is a cynicism that Congress could not possibly have meant to protect a disfavored group. For example, when the Court applied the ADA to prisons, some demanded a closer look. The Court emphatically rejected that view explaining that where the text was unambiguous, whether a specific application was anticipated by Congress was irrelevant.
  47. To refuse enforcement just because you are applying protective laws to a group that was politically unpopular at the time of the law’s passage, not only requires the Court to abandon its role as interpreter of statutes, but it would also tilt the scales of justice in favor of the stronger popular group and neglect the promise that all persons are entitled to the benefit of the law’s terms.
  48. If title VII’s plain text was only applied to the group expected in 1964, there would be a lot of law to overturn. In fact, many now obvious applications of title VII met with heated opposition early on even among those tasked with enforcing the laws. All you have to do to see that to see how the EEOC has evolved over the years with respect to what title VII covers.
  49. Title VII prohibition of sex discrimination in employment is a major piece of federal civil rights legislation and was written in starkly broad terms. It has repeatedly produced unexpected applications. Congress’s key drafting choice to focus on discrimination against individuals rather than on groups and to hold employers liable whenever sex is a but for cause of the plaintiff’s injuries, virtually guaranteed that unexpected applications emerge over time.
  50. Drafting new legislation or addressing unwanted consequences of old legislation is the responsibility of Congress.
  51. With respect to parade of portables that may result from the decision, none of those are currently before the Court. To figure out those issues, you would need adversarial testing. Under title VII, bathroom, locker room, or anything else of the kind are not being addressed by this decision. Whether other policies and practices might or might not qualify as unlawful discrimination or find justification under other sections of title VII are questions for future cases (that includes any cases dealing with the issue of how protecting religious liberty interact with title VII, which in any event none of the parties argue was the case here).

 

II

Justice Alito’s Dissent

 

  1. Sexual orientation and gender identity do not appear on the list of what employers may not do in title VII of the Civil Rights Act.
  2. Since Congress had never amended title VII to include sexual orientation and transgender, title VII’s admonition that sex discrimination is prohibited means what it has always meant.
  3. The Court has essentially taken a bill to amend title VII, which would specifically include sexual orientation and gender identity, and issued it under the guise of statutory interpretation. Such an approach is a brazen abuse of the Court’s authority to interpret statutes.
  4. The concept of discrimination because of sex is entirely different than the concept of discrimination because of sexual orientation or gender identity.
  5. The Court’s duty is to interpret statutory terms to mean what they conveyed to reasonable people at the time the statutory term was written. Accordingly, in 1964, it would have been hard to find anyone who thought that discrimination because of sex meant discrimination because of sexual orientation not to mention gender identity, a concept essentially unknown in 1964.
  6. While the majority decision sails under a textualist flag, what it actually does is apply the theory that courts should update statutes so they better reflect the current values of society. That is an approach that Justice Scalia couldn’t stand. If that is the theory for what the court is doing, they should own up to it as Justice Posner did in the Hively
  7. In 1964, it was as clear as clear could be that discrimination because of sex meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. You will not be able to find a single dictionary from that time defining “sex,” to mean sexual orientation, gender identity, or transgender status.
  8. If sex and title VII mean biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.
  9. The majority opinion spends a lot of time talking about what but for causation is and how it allowed for multiple causation. However, none of that matters if sexual orientation or gender identity does not inherently constitute discrimination because of sex in the first place.
  10. There is not a shred of evidence that any member of Congress interpreted the statutory text to include sexual orientation or general identity when title VII was enacted.
  11. Until 2017, every single Circuit Court to consider the question interpreting whether title VII prohibition against sex discrimination said that sex discrimination meant on the basis of biological sex. Further, the EEOC saw it that way for the first 48 years after title VII became law.
  12. Even the Court concedes that sexual orientation and gender identity are different concepts then discrimination based upon sex. Further, neither sexual orientation nor gender identity is tied to either of the two biological sexes.
  13. Just because the majority opinion repeats over and over again that discrimination because of sexual orientation or gender identity inherently and necessarily entails discrimination because of sex does not make it true.
  14. It is quite possible for an employer to discriminate based upon sexual orientation or transgender status without taking the sex of an individual applicant or employee into account. The US military did that for years. Also, the attorney representing the employees conceded at oral argument that it was possible for an employer to discriminate based upon sexual orientation or transgender status without taking sex into account.
  15. Title VII prohibits discrimination because of sex itself and not because of everything that is related to, based on, or defined with reference to sex.
  16. The Court draws a distinction between things that are inextricably related and those that are related in some vague sense. However, that approach creates arbitrary lines separating the things that are related closely enough from those that are not.
  17. Absolutely true that many people in 2020 and perhaps Congress if the majority had not intervened, believe that it is sound policy to hold that homosexuality or transgender status is not relevant to employment decisions. However, that is not the policy in title VII in its current form. Title VII prohibits discrimination based upon five specified grounds and sexual orientation or gender identity are not on the list. So as long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are relevant to its employment decisions. By proclaiming that sexual orientation and gender identity are not relevant to employment decisions, the court is updating title VII to reflect what it regards at 2020 values.
  18. Until title VII adds sexual orientation as a protected characteristic, employers are free to discriminate based upon sexual orientation. Same for transgender status.
  19. Title VII allows employer to decide whether two employees are materially identical. Even idiosyncratic criteria are permitted. While applying idiosyncratic criteria may be unfair and foolish, title VII permits it. Similarly until title VII is amended, discrimination against gays lesbians or transgender individuals is permitted.
  20. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on the label. Rather, the Court needs to show that a label is the correct label.
  21. The employer’s real objection in the case before it is not attraction to men but homosexual orientation.
  22. Homosexuality and transgender status are distinct concepts from sex. It is simply indefensible for the Court to say that the only possible interpretation is to conflate sex with transgender status and sexual orientation.
  23. Title VII forbids discrimination because of sex and not because of sex stereotypes. Sexual stereotype evidence is related to showing that discrimination occurred because of sex, but that isn’t the same thing as saying title VII prohibits discrimination because of sex stereotyping.
  24. In cases involving discrimination based on sexual orientation or gender identity, the employer’s decision that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with the biological sex applies equally to men and women.
  25. Discrimination because of sexual orientation is not historically tied to a project aiming to subjugate either men or women. An employer discriminating on that ground might be called homophobic or trans phobic but not sexist.
  26. The primary definition of “sex,” in every dictionary refers to male and female based upon biology. That is true today as well as in 1964.
  27. When interpreting a statute, a court has to consider how would the statute have been understood by ordinary people at the time of enactment. That is, judges should ascribe to the words of the statute what a reasonable person conversing with applicable social conventions would have understood them to mean at the time of adoption. So, slicing a statute into phrases while ignoring the setting of the enactment is a formula for disaster.
  28. Textualism calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what words were understood to mean at the time of enactment. That is to say, that you consider communication in the context of the community existing in a particular place and at a particular time. Therefore, those communication must be interpreted as they were understood by the community at the time.
  29. In 1964, ordinary Americans reading title VII would not have dreamed that discrimination included sexual and orientation and gender identity.
  30. In 1964, because of sex meant equal treatment for men and women.
  31. Stretching back in time, 1879 even, you can look at many state and federal laws using language indistinguishable from title VII’s critical phrase, “discrimination because of sex.” In all those situations, the laws were part of a campaign for equality waged by women’s rights advocates for more than a century and meant equal treatment for men and women. Including sexual orientation or transgender status would have clashed in spectacular fashion with the societal norms of the day.
  32. Looking at the norms of the day, Congress could have never included sexual orientation or transgender status within the definition of sex because at the time homosexuality was thought to be a mental disorder, morally culpable, and worthy of punishment.
  33. It wasn’t until 1991 when agencies began to change their security policies and practices regarding sexual orientation.
  34. While society has now come to recognize the injustice of past practices and that provides an impetus to update title VII, that is not the job of the judiciary.
  35. Transgender as a term didn’t come up until the 1970s. Gender identity didn’t appear until 1964 in an academic article. Also, common parlance and dictionaries of the time were still focused on biological sex. It wasn’t until 1980 that the DSM recognize transgender status in some way. Sex reassignment surgery were not performed until 1966, and the great majority of physicians surveyed in 1969 thought that a person seeking sex reassignment surgery was severely neurotic or psychotic. So, it defies belief that the public meaning of discrimination because of sex in 1964 could have possibly encompassed sexual orientation and transgender status.
  36. What the public thought in 1964 is relevant and important because it helps explain what the text was understood to mean when it was adopted.
  37. The Court’s citation of various cases are of no help because all of those cases clearly focus on sex.
  38. In the thinking of Congress and the public in 1964, discrimination based upon sexual orientation and transgender status would not have been evil at all.
  39. The essential question of whether discrimination because of sexual orientation or gender identity constitute sex discrimination is the same regardless of what causation standard is applied. Accordingly, the Court’s extensive discussion of causation standard is just blowing smoke.
  40. An employer discriminating equally on the basis of sexual orientation or transgender status applies the same criteria to every affected individual regardless of sex.
  41. When there is an ambiguity in the terms of the statute, the Court has found it appropriate to look to other evidence of congressional intent, including legislative history. However, the Court refuses to do so here.
  42. The person who added sex to title VII of the Civil Rights Act would have been better off looking for a poison pill by inserting the term sexual orientation or gender identity rather than sex. However, all of the legislative history reveals that the debate was exclusively focused on biological sex.
  43. Since 1975, legislators have tried to add sexual orientation the title VII to no avail. Accordingly, you would be hard-pressed to say that sexual orientation is the same thing as sex discrimination and the courts have said as much. Until 1991, the EEOC agreed.
  44. The Court has no qualms about disregarding over 50 years of uniform judicial interpretation of title VII’s plain text.
  45. The majority decision is going to have a huge impact on the law in a variety of ways. For example, over 100 federal statutes prohibit discrimination because of sex. The court’s refusal to consider the consequences of its reasoning is irresponsible. The Court would have been better off allowing the legislative process to take its course so that they could consider competing interests and find a way to accommodate at least some of them. By intervening this way, the Court has greatly impeded and perhaps effectively ended any chance of a bargained legislative resolution.
  46. Other ways this decision may impact the law include: 1) whether transgender individuals can now use a bathroom or locker room reserved for persons of the sex they identify with; 2) whether a gender fluid person has the right to use a bathroom or locker room they identify with; 3) whether a transgender individual has the right to participate on a sports team or in an athletic competition previously reserved for members of one biological sex (Justice Alito notes this kind of litigation is already happening); 4) whether a college can refuse to prevent opposite biological sex as roommates; 5) whether religious organizations can refuse to hire people based upon sexual orientation or transgender status. True, religious organization get a pass if the employee is a minister, as we discussed here, but not all employees of religious organizations are ministers; 6) whether transgender employees can challenge employer-provided health insurance plans not covering costly sex reassignment surgery; and 7) whether a person can claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination; and 8) whether sexual orientation and transgender individuals are now subject to a heightened standard review with respect to constitutional law. Although the Court does not want to think about the consequences of the decision, it will not be able to avoid these issues for long. The entire federal judiciary will be tied up for years with these kind of disputes.

 

III

 

Justice Kavanaugh’s Dissent

 

  1. The responsibility to amend title VII belongs to Congress and to the president not to the Court.
  2. Bills to include sexual orientation in title VII have always failed before Congress.
  3. Title VII did not include disability discrimination or age discrimination when enacted. Congress had to come up with separate laws for that.
  4. Judges cannot simply rewrite the law because of their own policy views. Rather, that is for the legislature to do.
  5. Since judges interpret the law as written not as they wish it would be to written, it makes perfect sense that the first 10 United States Court of Appeals to consider whether title VII prohibit sexual orientation all said no.
  6. Whether a literal meaning or an ordinary meaning of the terms is used to approach this decision, the inescapable conclusion that sexual orientation and transgender status is not the same at discrimination based upon sex.
  7. Ordinary meaning approach is the preferred way to go because of respect for the rule of law and democratic accountability. The Court over time has consistently use ordinary meaning rather than literal meaning when looking at statutes. When ordinary meaning and literal meaning conflict with each other, courts have to follow the ordinary meaning.
  8. Courts have to look to the ordinary meaning of the phrase as a whole and not just to the meaning of the words in the phrase. That is because the phrase may have a more precise or combined meaning than the literal meaning of the individual words and the phrases.
  9. Assessing ordinary meaning is not difficult in this case. Both common parlance and common legal usage view of sex discrimination and sexual orientation discrimination as distinct categories of discrimination, back in 1964 and even today.
  10. To say that sexual orientation and transgender status includes sex rewrites history. The women’s rights movement is not the gay rights movement, though many people support both. To say that sexual orientation discrimination is just a form of sex discrimination is a mistake of history and sociology.
  11. Where sexual orientation is prohibited, every single federal statute has explicitly stated this much.
  12. Differences in language convey differences in meaning.
  13. Presidential executive orders also reflect the common understanding that sexual orientation is not the same as sex discrimination. Same goes for federal regulations.
  14. In all the prior cases dealing with sexual orientation that have come before the court, not a single Justice even stated or hinted that sexual orientation discrimination is a form of sex discrimination and therefore gets heightened scrutiny under the equal protection clause. There is not even a trace of any such reasoning in those cases because presumably everyone understood that sexual orientation is distinct from sex discrimination.
  15. The majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. The majority decision will also promote cynicism about the role of judges because judges need to decide on the law rather than on personal preference.

 

IV

 

Thoughts/Takeaways

 

  1. So, what do you think? Do you think Justice Gorsuch has it right or do you think Justices Alito and Kavanaugh have it right? In addition to your political views, your answer very much might depend upon how you view the role of the judiciary. This blog entry is comprehensive, and so you have plenty of information to make that decision with.
  2. This case is going to be absolutely huge persons with disabilities in several respects. First, we know from this blog entry that retaliation is but for. It was debatable as to whether but for causation applied to title I matters, such as we discussed here. Now, that discussion is academic. We now know that but for can still be the rule even if it is does not mean sole cause. That is, this case makes clear that there can be more than one but for cause. Often times, in employment matters there is more than one but for cause. So, the debate over whether title I has a different causation standard than the retaliation provision of title V is now academic. It’s pretty clear that the rule is but for. However, but for does not mean sole cause. Over and over again, Justice Gorsuch says in his opinion that multiple but for causes are perfectly possible. Where any one of those but for causes exist, liability attaches regardless of whether it is just one part of a larger whole. Many years ago I recall asking a plaintiff attorney for a nonprofit disability rights group about his view of motivating factor litigation. He had told me that jurors didn’t understand motivating factor, and he simply did not understand all the litigation over motivating factor jury instructions. I specifically remember him telling me that jurors are much more likely to understand but for. I can’t remember his name, but he was a prophet.
  3. The second way this case will have an absolutely huge impact on people with disabilities is in the area of equal protection and in the area of sovereign immunity. As you may recall from this blog entry, both of those areas involve figuring out what equal protection classification persons with disabilities fall into. From there, you figure out whether the equal protection clause was violated or not. On the sovereign immunity side, the classification matters because that is what dictates whether the scheme is proportional to the harm being redressed. When it comes to persons with disabilities, we know per this blog entry, that when it comes to accessing the courts, persons with disabilities are at least in the intermediate if not higher level of scrutiny. However, everything else is on a case-by-case basis when it comes to persons with disability. For example, with respect to employment people with disabilities are in the rational basis, lowest, class per this case. Since sexual orientation and transgender discrimination is now sex discrimination, an argument can be made that for purposes of equal protection clause and for purposes of sovereign immunity litigation, people alleging discrimination based upon sexual orientation or transgender status receive a heightened level of scrutiny. If that is the case, that would mean that people facing discrimination on the basis of sexual orientation or transgender status are often times in a higher equal protection classification than persons with disabilities.
  4. The third way this case impacts upon people with disabilities is through the Rehabilitation Act. Under 29 U.S.C. §794 causation is, “solely by reason of.” That means under this case that causation in Rehabilitation Act matters is truly sole cause. One wonders if the upcoming election results in a complete turn over to control this November, certainly no guarantees that it will, whether you would not see an effort to amend the Rehabilitation Act to delete the word, “solely” from 29 U.S.C. §794.
  5. When I was teaching people how to be paralegals, one of the classes I taught was an introduction to philosophy course. In that course, the student learned that the slippery slope argument, which we lawyers are so fond of using, is actually a logical fallacy. That is, everything depends upon its facts, especially in the law, and so there isn’t such a thing as a slippery slope. That may not be the case here. We are already seeing litigation over bathrooms, and in Connecticut we are seeing litigation over whether transgender students can compete on athletic teams of the gender they identify with rather than their biological gender. I already mentioned the equal protection and sovereign immunity piece. I am also already aware of litigation over failure to provide insurance for sex reassignment surgery. Of course, you have the litigation over how the military currently treats trans individuals. It is also perfectly realistic to expect litigation against religious-based entities that discriminate on the basis of sexual orientation or transgender status where that individual is not a minister.
  6. Previously, as mentioned at the top of this blog entry, I have gone through all of Justice Gorsuch’s opinions on disability rights to try and figure out how he might handle disability related cases at the United States Supreme Court. From that review, I did see a stream going through his opinions of how common sense matters. You see some of that in his decision in this case. I have his book that came out shortly after he was put on the Court. I now plan to read it with an eye to see if I can figure out how he got to where he got with respect to the majority opinion.
  7. Justice Roberts also joined the opinion. Previously, he had dissented in gay-rights decisions earlier, such as Masterpiece Cake and Obergefell.
  8. Interesting that Justice Gorsuch brings up the debate about the equal rights amendment. I am pretty sure that the arguments about how the ERA would protect homosexuals from discrimination was a big point made by the anti-ERA activist and not by the pro-ERA side.
  9. Interesting that both Justice Gorsuch and Justice Alito say they are squarely in Justice Scalia’s way of looking at things. That shows just how huge of an impact Justice Scalia has had on the Supreme Court.
  10. Very unclear now why a trans individual would even consider ADA claims when they can now proceed under title VII. After all, the ADA has an exception that can make it difficult for trans individual to proceed under the ADA. See also this blog entry.

2 Responses to But For Causation is not Sole Causation and Other Matters: the Supreme Court LGBT Decisions

This is from Julie Chovanes, a trans attorney in Philadelphia, who I work with from time to time.

Thank you for this entry. As a trans woman and trans civil rights lawyer I love this opinion. it is revolutionary and will enable my clients to seek relief against unlawful sex discrimination. That’s because it defines the work “sex” generally and can be used in any situation where sex discrimination might be at issue.
The posting ends with the statement that it is unclear why a trans person would seek to use the ADA as well. It’s self evident to me. Why would you ever cut off another avenue to seek relief? And just so it’s clear the use of the ADA is for trans people with gender dysphoria-not all trans people. Gender dysphoria is about the stress caused by being trans — trans people suffer corners — from being mocked for looking funny to being accused of sexual degeneracy. That stress can become disabling as you can understand.
Gender dysphoria is recognized by the Trump administration as falling under the ADA. See our case Doe v, Arris et. al. in New Jersey where we got a statement of interest-the first one in from the Trump administration recognizing that gender dysphoria is under the ADA.
Why wouldn’t I use it?

Thank you Julie! I am afraid my question is not clear. My question is what does the ADA get you that title VII of the Civil Rights Act does not? Remedies? Reasonable accommodations?

Leave a Reply

Your email address will not be published. Required fields are marked *