Supreme Court Rules Civil Rights Law Protects LGBT Workers, Echoing Philosophers’ Brief
The United States Supreme Court issued a ruling this morning in the case of Bostock v. Clayton County, Georgia, holding that Title VII of the Civil Rights Act of 1964 protects gay and transgender employees from workplace discrimination.
In the 6-3 ruling, written by Justice Neil M. Gorsuch, the court says:
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 a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
The ruling includes reasoning similar to that offered in the “Brief of Philosophy Professors as Amici Curiae in Support of the Employees” (discussed here), co-authored by philosopher Robin Dembroff (Yale) and law professor Issa Kohler-Hausmann (Yale), and signed by 80 philosophers. In that brief, they wrote:
The concept of “sex” is inextricably tied to the categories of same-sex attraction and gender nonconformity. Both categories are partially defined by sex and cannot logically be applied to any individual without reference to that individual’s sex. It is simply not possible to identify an individual as being attracted to the same sex without knowing or presuming that person’s sex. Likewise, it is not possible to identify someone as gender nonconforming (including being transgender) without reference to that person’s known or presumed sex and the associated social meanings. It follows that discrimination on the basis of same-sex attraction or gender nonconformity is inherently discrimination “because of sex.”
You can read the Court’s decision here.
Talk about impact!!!
As Neil Gorsuch, like so unusually many people associated with Donald J. Trump, is a documented plagiarist ( https://www.plagiarismtoday.com/2017/04/06/breaking-down-the-neil-gorsuch-plagiarism-scandal/ ), it is possible that impact of the Amici Curiae is truly far-reaching.
I get it, you need to support your tribe. But surely you aren’t so…silly (to put it mildly) to think that Gorsuch plagiarized this.
Why – because you don’t think these verbatim passages are enough to constitute plagiarism or because you don’t think he wrote his own book?
My hopes to have the funniest reply on this page dashed. I didn’t anticipate anyone missing that it was a joke and going to bat for Gorsuch.
The plagiarism charges against Gorsuch in relation to his book were, I think, non-trivial at the least. But, in the context of judicial decisions like this, adopting the reasoning, and sometimes even the phrasing, of briefs filed before the court without explicitly citing them – certainly not in the way that an academic paper would cite them – is normal and not thought to be wrong or irregular. Maybe that’s a bad thing. I don’t have a strong opinion on it – but it was certainly the case when I was a federal law clerk for all sorts of decisions, and seems to have been so for a long time. So, I don’t think we’d say that plagiarism applies here. (Also, it’s common for many briefs to say similar things, or to say things that would be clear to any smart person who thinks about the topic. And, most amica curia briefs go largely unread by the courts, so assuming a direct causal impact of the brief here is not completely clearly warranted.)
I wonder if some of the philosophers with a background in philosophy of language could address the nature of ‘textualist’ analysis — what is going on in the underlying analysis?
Further to Matt at 3:37 the Philosophers Brief was not the only amicus arguing the line adopted by Gorsuch, there were also briefs filed by law faculty and Sup Court practitioners arguing the same line.
There is a _big_ literature on textualism, some by legal philosophers and some w/ decent philosophy of language background (although some of that suffers from not understanding the law that well.) A good starting place for understanding the legal issues are several sections in Scalia’s Tanner lectures, published as _A Matter of Interpretation_, including “The Science of Statutory Interpretation”, “Church of the Holy Trinity”, and “Textualism”. (Note that Scalia was a textualist on statutory interpretation and an originalist on constitutional interpretation, arguing that different approaches applied to the two. That’s not required, but isn’t unusual. I think it’s Gorsuch’s position, too. To my mind, Scalia’s best decisions are his textualist ones.) If you search “Textualism” on SSRN, you’ll find lots of articles, including some by good legal philosophers like Ryan Doerfler, Andrea Marmor, etc. There are also several relevant chapters in the volume _Philosophical Foundations of Language in the Law_ edited by Soames and Marmor (though the lack of legal training by several of the authors, and the doubts I have had about their writings about the law in other contexts, makes me a bit skeptical about some of the contributions.) Other examples are not hard to find – if anything, there is so much on this topic that narrowing down a search is the hard part.
Super happy about the impact. But does this mean analytic philosophers can only be active within the confines of textualism?
If only. The only seeming brake on Scotus being an undemocratic, unaccountable super legislative body is adherence to some sort of textualism. Plenty of my friends are more than happy to embrace it, when it gets the result they want – dismiss it when it doesn’t. That goes for the philosophers too.
I’m happy about the ruling. May it continue, and may the real legislatures actually do their job.
“Textualism” is a pretty plausible approach to understanding the text of statutes (as was the issue here), especially when they are fairly concrete, as this one was. It’s less plausible (and so not nearly as popular) for constitutional debates when abstract language is used (“due process”, “equal protection”, “speedy trial”, etc.) In those cases, both “conservatives” and “liberals” apply different approaches, as a “textualist” approach just leaves us up in the air. That wasn’t the case here, as in many disputes about statutes. And, in this case, the “real legislature” did do it’s job, and the court applied the text as written.
Did “textualism” really settle the issue here? The dissent claims to be textualist also, with Alito appending pages and pages of dictionary definitions to his dissent. It seems to me there were two dueling textualist opinions here. (Now maybe Gorsuch’s textualism was better reasoned, borrowing as it apparently did from the philosophers’ brief, but that’s a different matter.)
For years, apparently, lower courts generally read Title VII to exclude (i.e., not to cover) discrimination based on sexual orientation. Then things started to change in recent years. Why? Did judges develop better approaches to statutory interpretation, or did the societal context change? I’d suggest it was the latter. That’s not to say it’s illegitimate. Constitutional provisions can change their meaning over time, and there’s no reason that statutes sometimes can’t do the same.
(P.s. Just to be clear, I agree with the result in this case. This comment is not a criticism of the result.)
Not that many (though not zero, as the non-trivial number of 9-0 cases shows) cases get to the Supreme Court where there is not at least some argument to be made on each side of the issue. And, there was some argument to be made on both sides here. But, Alito has a well-earned reputation as one of the most results-oriented judges on the court for a long time, and while I think he’s mostly a bad person, he’s not an idiot, so it’s no surprise he can work up a facial argument for whatever result he wanted anyway. As for the substance, it seems more plausible to me to see that it was ideology, prejudice, and false views that lead people to think that “on the basis of sex” didn’t cover these cases until recently, even though, as shown here, it very plausibly does. We can thank the Obama administration for extending the statute to these cases where it clearly should have been extended before.
I’ll also leave Orin Kerr’s article here https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/06/the-rise-of-donald-trump-and-the-politics-of-delegitimization/
That’s kinda cool Gorsuch wrote the majority opinion. I remember a while ago how angry Democrats were about his appointment–maybe because of Garland, maybe because they’d hate anything Trump did regardless. Wonder if they think this opinion vindicates Gorsuch’s appointment overall?
*Maybe* because of Garland? lol
“Wonder if they think this opinion vindicates Gorsuch’s appointment overall?”
No, of course not. Gorsuch has strong textualist leanings, and that’s usually a good thing in a judge. He’s less of a hack than Alito or Kavanagh in this sense, although when the text of a statue is unclear, he’s completely happy to take a page out of a Federalist Society play book to “see” what it means, and in cases of constitutional interpretation, when textualism is much less applicable, he regularly does the same. So, even though he got it right here, it’s hardly enough to “vindicate” his appointment, especially given the extremely dubious conditions under which it was made.
When George Costanza was fired by Pendant Publishing after having intercourse on his desk, this too was job discrimination on the basis of someone’s sex. Literally. Yet no one would argue that Title VII aimed to nullify standard workplace regulations barring sexual activity. When statutes’ plain meanings lead to absurd results, no reasonable judge can persist in the risible practice of pure textualism. Law is language. Judges aren’t linguists, necessarily, but the good ones are no less advanced subfield practitioners of semantics, if not pragmatics.
I can’t tell whether this post is supposed to suggest that philosophers played some important role here. If so, it’s kind of amusing. The passage you cite from the Court that allegedly “echos” the amicus brief simply reflects the position taken by the petitioners, with whom the Court sided. Here’s a quote from one of the petitioners’ briefs, for example (the others contain similar passages):
“The argument that sexual orientation discrimination is not sex discrimination because it targets only gay men and not all men, or because both men and women can be gay or lesbian, is therefore meritless. . . . Discrimination against a gay or lesbian employee on the basis of sexual orientation is plainly discrimination “because of sex” under Title VII because an employer must consider the employee’s sex in order to consider his or her sexual orientation, and because the employer necessarily treats the employee differently than it would if she or he were a member of the opposite sex.”
The philosophers picked the right side, echoing the position of the petitioners, but it’s a weird sort of self-congratulatory delusion to suggest that the Court was echoing the philosophers.
Delighted to see this sane and fair result. Also delighted to see Robin Dembroff echoing, in the extract from the brief you publicise, several points I also made in this published Aristotelian Society paper from last year, in which I argued against one Robin Dembroff. https://academic.oup.com/aristotelian/article-abstract/119/3/295/5573243
Uhh…Dembroff made in print the basic point that you’re trying to co-opt three years before you did. Page 20 of Dembroff’s “What is Sexual Orientation”:
“Supreme Court Chief Justice John Roberts recently articulated a similar shift in thought during oral argument in Henry v. Hodges, a case concerning the legalization of same-sex marriage. Justice Roberts re-described the same-sex marriage question in terms of sex discrimination, and (perhaps rhetorically) asked why the issue could not be decided on the
basis of pre-existing protections against sex discrimination: I’m not sure it’s necessary to get into sexual orientation to
resolve this case.…
I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based on their different sex. Why isn’t that a straightforward question of sexual discrimination?
As Justice Roberts here notes, cases of sexual orientation discrimination can be easily re-described in terms of gender or sex discrimination by holding fixed that multiple individuals share the same sex- or gender-attractions, and yet some are discriminated against simply because they have a particular sex or gender in addition to those attractions. BD goes a step further by saying that the sex- and gender-attractions — again, understanding these attractions in terms of behavioral
dispositions under ordinary conditions — are all that matter for sexual orientation. My own sex and gender, for example, do not matter for my sexual orientation. And so, if I am discriminated against for having the attractions constituting sexual orientation X and a man who has sexual orientation X is not discriminated against, I can recast this discrimination
as gender discrimination and appeal to pre-existing laws prohibiting this discrimination as the basis for my legal protection.”
What are you talking about?
It’s wonderful to see the sex denialists can acknowledge reality on the odd occasion, when it suits their purposes. Perhaps one day it will suit their purposes when it comes to sexism and sex-segregated spaces like prisons, sports, and shortlists too.
I take it you are referring to the view that “biological sex” is socially constructed, which was championed by Judith Butler in the early 90’s and has recently become popular among many trans activists. I agree with you that the arguments put forward for this social construction thesis are very poor, and that the thesis is very probably false. However, I am not convinced by your charge of hypocrisy. Suppose that I am a social constructionist about sex. I might recognize that the congress that passed Title VII intended “sex” to pick out a biological category, and that SCOTUS will also take that interpretation. In that case I might argue that, if they take that interpretation, then they ought to apply Title VII to workplace discrimination on the basis of sexual orientation or transgender status. Holding this is consistent with social constructionism about sex. For, I can hold that, given their assumptions, this is what SCOTUS ought to do, yet also hold that ideally all the laws of the land ought to be reinterpreted or rewritten to remove any commitment to biological sexes.
In case it isn’t clear, because nothing is, I absolutely reject that claim of Dembroff’s about my writing.
Although I am glad to see my fellow philosophers getting involved in issues as important as this one, it’s highly unlikely that the philosophers’ brief had any impact on the decision. For one thing, the basic argument had already been made in the petitioners’ brief. Second, many amicus briefs were filed in this case, and it would be surprising if none of them made the same basic argument (see below). Third, Gorsuch sort of showed his hand at oral argument by indicating that as a textualist, he would probably have to go in the direction that he did; the worry he expressed was about the effects of so ruling–a factor that he ultimately, and correctly, given his textualism–set aside. Fourth, if you read Gorsuch’s opinion closely, it is a clear applications of canons of statutory construction. Fifth, we had an early glimpse of this in Justice Scalia’s opinion in Oncale (cited in Bostock), an quite short opinion in which the Court held that same-sex sexual harassment that meets the statutory requirements violates Title VII’s ban on discrimination “because of sex.” Justice Scalia wrote,
“We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.”
Finally, to the extent that amicus briefs had any impact on Gorsuch’s opinion for the Court, the one to look at is the brief filed by Laurence Tribe and Joshua Matz, which also makes the same basic argument as in the philosophers’ brief, but essentially lays out the very approach and arguments the Court ultimately articulated.
These comments are in no way meant to diminish the value of the philosophers’ brief or the importance of philosophers involving themselves in the issues of the day. Frankly, I would like to see a lot more of that and more effort to establish philosophers as a go-to source for critical discussion of public policy and issues of social justice in the news and on regular news programming.
I tried to post this this morning – it was not accepted though my second comment was (which then made no sense). So I’ll try again in the hope that I’ll be allowed to answer a direct question posed to me by ‘E.”
“What I am specifically talking about is that in that paper you describe, Dembroff argues that on their preferred conceptually engineered account, we should not refer to “same-sex” attraction as an orientation at all, but only delineate orientations by reference to the desired object, without relation to the sex (or gender) of the subject. Thinking of orienation as based on “same-sex’ or “opposite-sex” is supposed to be exclusionary for people who have queer sexualities. On Dembroff’s preferred account: “there are no such sexual orientations as (e. g.) “homosexual” or “heterosexual”. And there is no distinction in the sexual orientations of (e. g.) a cisgender man and a transgender woman who both are exclusively attracted to women. The statistical divide between cisheterosexuality and queer sexual orientations simply disappears, because these categories disappear, and their members are reorganized into new categories.” It is therefore somewhat hallucinatory to see ‘same-sex” orientation casually reinstated again. Normally I’d accept this as deferring to the prevailing (perhaps inadequate) concepts for strategic purposes , but coming from someone who repeatedly presents me as an absolute pariah for thinking the category of same-sex attraction significant, it jars. For instance, this is a person who writes in a forthcoming publication in Transgender Studies Quarterly “The situation in philosophy is, to be blunt, a massive, complex, and thorny transgender trashfire. This trashfire manifests most explicitly in the context of social media, blogs, interpersonal interactions, and the occasional journal publication, and has serious repercussions. (To name one, a number of high-profile court briefing opposing trans rights in both the US and the UK cite blog posts by philosophers such as Kathleen Stock and Alex Byrne as evidence that trans persons are dangerous and deluded. ) ”
[This is the claim of Dembroff’s which I rejected in my second comment that was allowed earlier}
There is also no recognition in Dembroff’s original paper on sexual orientation that gender – being gender non-conforming or otherwise – depends fundamentally on sex. They are treated as separate, and sex is not included as a causally explanatory factor in attraction to gender. The most that I can find there to say different is “sex categories are related to anatomical features while gender categories are related to relational and social features. (Of course, there may be overlap in the features that provide the basis for sex and gender ascriptions — what’s important is that they are not identical.)”. But if the preferred line is now that reference to sex underpins “gender” more systematically than occasional overlap, then it seems reasonable to refer to it in many contexts when discussing trans issues (something I am constantly told makes me transphobic – by Dembroff and by many of the signatories of the brief). It also seems to me possible that people sexually oriented to “gender” are also inevitably oriented to “sex” in a predictable pattern (homo, hetero, bi). In my paper this is what I argue is the case. This is of political relevance because as you presumably know, organisations like GLAAD currently describe e.g a trans woman attracted to a female as a “lesbian” and a trans man attracted to a female as ‘straight”.
Prof. Stock,
I don’t understand why you think there is a tension between what Dembroff et al. say in their brief and what Dembroff says in their philosophical writing. The non-reflexive account developed in their 2016 paper is an attempt to engineer a better concept of sexual orientation. The reflexive account articulated in the brief is a straightforward conceptual analysis of society’s extant concept of sexual orientation.
Suppose Haslanger (to choose a prominent example) wrote a brief to the Supreme Court wherein she defined race in terms of skin color, heritage, etc. Would that brief be in tension with her philosophical work that develops a concept of race based on social hierarchies? It doesn’t seem to me that there is any tension there. In fact, the whole point of Haslanger’s research is to draw attention to the gap between how we *in fact* conceptualize race and how we *should* conceptualize it.
Perhaps I’m missing something, though. If so, I’d appreciate the clarification. Thanks!