So an interesting take by Sean Trende on the USSC decision on Title VII

So Sean Trende takes a novel approach arguing the the textualism demanded by conservative judicial advocates was actually the very logic used by Gorsuch to write his majority opinion. More to the point, Trende is of the opinion that this was a case won by clever lawyering as much as anything else.

The argument makes the argument that Title VII does not just protect discriminating by sex, but also protects discriminating by actions or situations associated with the member of one sex, but not the other. For instance, you cannot fire a women because she gets pregnant, unless of course you want to also fire a male for getting someone pregnant. You cannot fire a man for wearing eye liner, unless you are also going to fire a woman for doing so. So in essence, your choices for either hiring or for firing someone cannot be inherently different for a male versus a female.

So if Jane decides to get into a sexual romantic with the bartender Mike who works in the same building, nobody is going to fire Jane for what she does on her free time. But if you decide to fire Bob because he got into a sexual romantic relationship with the bartender Mike (who is bi-sexual for the purposes of this argument), wouldn't that be a specific example of treating the situations differently based on sex? In this case, a women is okay to sleep with Mike, but a man cannot?

Is that discrimination based on sex?

This same logic would apply to a transgender person as well. If you cannot fire Jane for wearing a sundress to work, how can you fire Mike for wearing a sundress? If Jane decides to change her name to Fatima because she joined the Muslim church, she is entitled without any repercussions. But if Mike changes his name to Michelle, can you terminate him? Is this a situation where you are treating someone different based on their sex?

Interesting questions and an interesting interpretation of these legal events.

Obviously there are some slippery slope issues that arise here. Can obviously heterosexual Rick now decide to take a shower in the girls locker room in the company gym because woman are allowed to shower there? If you don't fire a woman for showing in the women's shower, can you fire a man? So the argument obviously has some scratches around the edges that will need to be smoothed out.

Of course, ultimately it still doesn't change the more important question as to whether or not this is something that is up to the courts to decide or something that (as the dissenters argued) should have been left to the legislative branch. I still take issue with Roberts and Gorsuch making themselves decision makers on this one. But it appears hard to argue with the legal logic.