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provoman

Amicus brief joined by Church at SCOTUS

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Posted (edited)

https://www.supremecourt.gov/DocketPDF/17/17-1618/113408/20190823135252781_Bostock Amicus Brief Final Version CORRECTED.pdf

 

The case involves "sex" discrimination and whether or not "sex" discrimination applies to sexual orientation/gender Identity. Specifically did a religious based business discriminate based on sex when it terminated the employment of a male employee that was/had transitioned to identifying as female.

 

wikipedia entry

Edited by provoman

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Well, a case like this had to happen eventually. I admit I secretly hoped it would be a Las Vegas prostitute deciding to transition and than getting fired. That would be a funny case.

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I think this case will go a long way in legality defining what religious freedom is.

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18 minutes ago, sunstoned said:

I think this case will go a long way in legality defining what religious freedom is.

Maybe even help define legally what "gender" is.

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Ooops, got this confused with a different case above. This is not a religious employer. I get that interpreting the statute broadly could hit religious freedom but wouldn’t that have to come from another case where a church is employing someone?

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Should a non-religious business entity be able to hire and fire based on intersex discrimination?

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8 hours ago, Jake Starkey said:

Should a non-religious business entity be able to hire and fire based on intersex discrimination?

Well, I wouldn't do so.  Should anyone else be allowed to do so?

I'm at war with myself over that one.  My firebrand inner Libertarian says a business should be able to hire and fire based on whatever the owner wants.  He/she/its footing the bill, after all. My more rational inner Libertarian says "Now, wait a minute! There needs to be some limitation -- I hate discrimination -- just not sure where to draw the line..."

If I owned a business -- a bad idea because I demonstrably have utterly no business sense -- I would consider only whether an employee was pulling his, her, or zir weight.  If you're making me money, I don't care about much else.  Want to transition to some other status in your life?  OK, let me check... will this make me money, be neutral, or lose me money?  If the former two, I'm cool with it; if the latter, you probably need to look for other employment. I'd expect it to be the first two almost all the time.  Some twerps who run businesses might want to care about other things, however -- like if you voted for Trump they want to fire you, or if they're queasy about intersex people.  That's where I get really grumpy.  They shouldn't base such decisions on things that do not demonstrably negatively affect the business.  

Problem is, people have put laws into place about this.  And those laws can be incredibly cranky.  If I get a person who happens to be a bad fit with my business model and is costing me money, but at the same time firing them might be seen as some kind of illegal discrimination even if that's not my motivation... there's a problem.  So both my firebrand inner Libertarian and my rational inner Libertarian are shaking their heads in pain.  Cuz we're both going to get into some kind of trouble, whichever way this turns out.  Rock and hard place.  Frying pan or fire.  Despair.  Possible bankruptcy.

So... No, the non-religious entity should not be able to hire based on intersex discrimination.  No matter what happens.  Survival.  Grin and bear it.  Have plenty of money in a numbered Swiss bank account, because it might get really ugly.

I don't think it's all that dramatic, most of the time.  But the exceptional cases can be killers.

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Great answer, Stargazer.  In the family business, which we all built up over a fifty year period, we sibs all promised each other that we would not willingly hire rabble rousers right or left, no racists of any kind across the prism, and no male/female sexists.

We had to fire eleven for behavior we thought was incompatible with our brands.  Five of them ended up in law suits.

We won every one.

Just be fair with expectations of what we wanted and did not want.  Do your job and go home to your goat if you want.  Just don't put it in anyone's face.

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10 hours ago, Jake Starkey said:

intersex

Intersex or transgender?  The current case is the latter. 

What do you mean by intersex discrimination?  How would that be expressed?

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Actually the reverse, transgender is often used for intersex.  Intersex is biological traits are ambiguous. Transgender usage that includes intersex is defined as any ambiguity or nontypical male/female sex.  See page 1292 of the below

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1160&context=nulr

Edited by Calm

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The real issue of this case isn't whether or not those who gay or transgendered should be fired because of that ---- surely the answer from every good person is a resounding no, except in a very few limited cases that I cannot even imagine in this moment.     The fact is that the Congress that passed the Title IX law fought over whether gay and transgender people should be protected from discrimination.  Then, and now for more than 25 years, later Congresses have sought to add that protection, and been unable to agree to language to do so.    And courts should not make laws that Congress cannot pass.   Activists want the SCOTUS to do what Congress hasn't been able/willing to do.   I hope that the entire court will write that while they agree that such people should be protected,   the court cannot do what Congress doesn't.  SCOTUS isn't supposed to make law.

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1 hour ago, rpn said:

The real issue of this case isn't whether or not those who gay or transgendered should be fired because of that ---- surely the answer from every good person is a resounding no, except in a very few limited cases that I cannot even imagine in this moment.     The fact is that the Congress that passed the Title IX law fought over whether gay and transgender people should be protected from discrimination.  Then, and now for more than 25 years, later Congresses have sought to add that protection, and been unable to agree to language to do so.    And courts should not make laws that Congress cannot pass.   Activists want the SCOTUS to do what Congress hasn't been able/willing to do.   I hope that the entire court will write that while they agree that such people should be protected,   the court cannot do what Congress doesn't.  SCOTUS isn't supposed to make law.

That's all well and good, but there is a little thing in the Constitution called "equal protection of the laws."  That clause has to be interpreted.  That's what judges do.  Thus far, they've gotten a lot of mileage out of it.

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2 hours ago, Calm said:

Actually the reverse, transgender is often used for intersex.  Intersex is biological traits are ambiguous. Transgender usage that includes intersex is defined as any ambiguity or nontypical male/female sex.  See page 1292 of the below

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1160&context=nulr

If you say so.  As far as our business go, it's simple: don't rock the boat with sex, politics, religion, or family.

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SCOTUS interprets what "equal protection" means in this case, not us.

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9 hours ago, rpn said:

The real issue of this case isn't whether or not those who gay or transgendered should be fired because of that ---- surely the answer from every good person is a resounding no, except in a very few limited cases that I cannot even imagine in this moment.     The fact is that the Congress that passed the Title IX law fought over whether gay and transgender people should be protected from discrimination.  Then, and now for more than 25 years, later Congresses have sought to add that protection, and been unable to agree to language to do so.    And courts should not make laws that Congress cannot pass.   Activists want the SCOTUS to do what Congress hasn't been able/willing to do.   I hope that the entire court will write that while they agree that such people should be protected,   the court cannot do what Congress doesn't.  SCOTUS isn't supposed to make law.

Then there is the bearded man that demands that others address him as "Madam" because of his feelings. What is strange is that in England a doctor was fired for refusing to address the fellow as such. Stupidity is all well and good for humans, but there is a line of the absurd that just does not need to be crossed. If individuals want to run a carnival attraction, then by all means join the carnival. If not, then stop acting the role of an jack*** and act in a socially acceptable manner. 

That appears to be the question - should a society have norms? Should a society have rules? Should a society have cohesion among its members? Should a society have norms at all?

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Storm Rider asks "That appears to be the question - should a society have norms? Should a society have rules? Should a society have cohesion among its members? Should a society have norms at all?"

That is what these cases are about: creating or re-creating norms.

 

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11 hours ago, Storm Rider said:

If not, then stop acting the role of an jack*** and act in a socially acceptable manner. 

If a man is fired from his job for that, it seems rather clear he was not acting in a socially acceptable manner since those society appointed to determine appropriate norms penalized him. 

Edited by Calm

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The doctor knew the rules, and he was penalized for not following them in addressing the person as he wished to be addressed, as he was empowered by the law to do.

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21 minutes ago, Jake Starkey said:

The doctor knew the rules, and he was penalized for not following them in addressing the person as he wished to be addressed, as he was empowered by the law to do.

Oh, sure, he was empowered by the law to address a man as a Mrs, but in a society where everyone has the right to freedom of speech he was also empowered by law to call the man an *** or donkey if the doctor had wanted to do that, instead.

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25 minutes ago, Ahab said:

he was empowered by the law to address a man as a Mrs, but in a society where everyone has the right to freedom of speech he was also empowered by law to call the man an *** or donkey if the doctor had wanted to do that

And his bosses had the right to fire him over it as not following the standard of care they required.

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13 minutes ago, Calm said:

And his bosses had the right to fire him over it as not following the standard of care they required.

That is what is in question now, I believe.  Were they within their rights to fire him for that reason?  I suspect there will be a judge and jury to determine that in this case.  And we who are the outside are free to form any opinion we like, as apparently you have done here.

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1 hour ago, Ahab said:

Oh, sure, he was empowered by the law to address a man as a Mrs, but in a society where everyone has the right to freedom of speech he was also empowered by law to call the man an *** or donkey if the doctor had wanted to do that, instead.

Ahab, the UK does not have the same "right to freedom of speech" as we do in the US.  Additionally, in the US, you do not have any freedom of speech in the work place.  In our  business, religion and politics and cultural mores were off the table, not permitted, verbotten.

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On 10/11/2019 at 4:06 PM, Calm said:

If a man is fired from his job for that, it seems rather clear he was not acting in a socially acceptable manner since those society appointed to determine appropriate norms penalized him. 

My point was the exceptional situation - a man with a beard demanding to be called Madam and other employees are fired because they refused to do so - versus the more normal situation - an individual in a dress/pants suit, feminine clothing that wants to be known as Trixie. Who should be fired? Certainly not Trixie or Tom, as long as they are productive in their work, but not for their fetish/chosen gender identity, etc. The individual with a beard is just a sideshow and should probably be fired for creating a disturbance in the workplace. 

In a small family business, I can see far more leeway given to who they choose to employ and who they do not. The business is far more closely associated with their own identity. If they want to hire only Muslims, then fine. If that also means they will not tolerate a gay person, then I also think it is fine. 

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Storm Rider, British law denies you the legal right to decide an "exceptional situation" permits you to ignore the law and not call the person 'Trixie.'

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