Imagine an employer Pretty LGBT Opossum Trash Queen Shirt 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. 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 that individual’s sex.
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Gorsuch is a strict textualist. The Pretty LGBT Opossum Trash Queen Shirt 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 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. There was a story a while ago about a boarding school in England with a strict dress code of pants or skirts. Can’t find the exact article now, but there’s a bunch of similar stories and different ways schools have ruled.
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That’s already covered under Title VII, Pretty LGBT Opossum Trash Queen Shirt mentions a case of sexual harassment between two men that the Court ruled as a violation of Title VII decades ago. A huge part of his argument is that the Court has long held that, with Title VII, the law’s scope extended beyond the ‘principal evil'(sexism in the conventional sense) that the lawmakers intended to address. To rule otherwise would risk undoing tons of precedent and severely limiting the scope of Title VII.
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