“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of different sex. Sex plays a necessary and undisguisable role in the decision. Premium LGBT Not A Phase Shirt.” There was a story a while ago about a boarding school in England with a strict dress code of pants or skirts. A male student was getting uncomfortably hot wearing long pants, so he started coming to school in a skirt. I can’t find the exact article now, but there’s a bunch of similar stories and different ways schools have ruled. And I completely agree with his argument. It’s an interesting one, and not one I think I’d put together at first blush. I can also see how it would have broader implications for sexism/harassment complaints that men bring against women.

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Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. Premium LGBT Not A Phase Shirt. And introduces a manager to Susan, the employee’s wife. Will that employee is fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.

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Gorsuch is a strict textualist. The Civil Rights Act states that you cannot discriminate based on sex, but nothing about sexuality. I think his argument is the only logical way one could conclude that the Civil Rights Act’s protections extend. Premium LGBT Not A Phase Shirt. To LGBTQ+ individuals based on the text alone. In an ideal world, Congress would have just passed a law extending these protections a long time ago. If a man wears a dress to work, though it does not identify as a woman… that seems like it would also be ok. (And to be honest, how crazy is it that we as a society care what kind of clothing people wear?)

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