#Title VII

~ R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission - Wikipedia

~ What Is Legislative Intent | Legislative Intent (legintent.com)

The Supreme Court was founded in part to balance the executive and legislative branches of government, and it can help prevent the legislative branch from overstepping its legal obligations by measuring the laws they pass against the U.S. Constitution.

~ Judicial activism Definition & Meaning | Merriam-Webster Legal

"Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.[1]"

~ Textualism - Wikipedia

Does Title VII of the Civil Rights Act of 1964 prohibit discrimination against transgender individuals, either as a form of sex discrimination or as impermissible “sex stereotyping” under Price Waterhouse v. Hopkins?

MY ARGUMENT AGAINST THE RULING GIVEN BY GORSUCH:

Justice Gorsuch violated the intent and purpose of legislative history and likewise the rules of statutory construction when he evaluated the case of transgender Aimee Stephens. In effect, he legislated from the bench via judicial activism. He essentially created law where no law existed within the original crafting, intent and purpose of Title VII within the Civil Rights Act of 1964 where gender identity and sex stereotypes are concerned. 

The arguments presented by Stephens are patently illogical.

Stephens argued that Title VII "specifically" prohibited transgender discrimination [because] it barred employers from terminating their employees “because of [an] individual’s . . . sex.”  Stephens further argued that by terminating someone because they are not conforming with their employer’s view of how that person’s “biological sex” ought to present itself, the employer is using that person’s “sex” as it was determined at birth in order to purposely discriminate against them. 

When one looks at the legislative history of the Civil Rights Act of 1964, "specifically" Title VII, there is absolutely no language or debate involving transgender, gender identity and/or sexual orientation rights given the glaring fact that none were even an issue in 1964 where legal protections were concerned. Issues meaning neither was seen as apparent then as they theoretically are present-day where legal protections were necessarily needing addressed by said Act in 1964. 

The origins of gender identity did not appear to take a foothold in law until the early 1970s, which had more to do with hermaphroditism and transsexualism than actual transgenderism. 

The introduction of the dichotomy between anatomical sex and gender identity, then commonly referred to as the psychopathological condition of gender identity disorder, was not introduced into the APAs Diagnostic Statistical Manual until the Third version in 1980, 16 years after the passage of the Civil Rights Act of 1964.

As such, there is absolutely no measure by which Stephen's argument that Title VII "specifically" prohibits transgender discrimination in employment, or any other area of employment law either. And what one's perception is of what another's sex "ought" to present themselves as is legally irrelevant. To argue such is to also argue how one "ought" to behave when employed, take for example lawfully vs unlawfully; kind or unkind; professionally or unprofessionally. Each measure is a commonsense expectation of behavior, and for a biological man to present himself as a man for nearly two decades as a man, only to one day abruptly claim they are not what they were born as and wish to live their personal fantasy as the opposite sex is a shock to commonsense and the laws governing fraud.

You apply as a man, are hired as a man, work as a man, conduct yourself as a man and then inform your employer you will be coming to work as a woman in appearance and wish to be treated as a biological woman is fraud under the law. An employer is not obligated to facilitate your fraudulent behavior. The Funeral Home had every legal right to terminate employment with Stephens. For Justice Gorsuch to find legal justification for acceptance of transgenderism in Title VII flies in the face of both legislative intent and unquestionably demonstrates judicial activism. 

Stephens then argues that should the Court exclude transgender discrimination from Title VII, it would add to the only codified exception to Title VII's protections. This exception being the bona fide occupational qualifications exception that HOOTERS prevailed in regarding being sued by male applicants denied employment as waiters. Hooters maintained it was on the right side of the law in asserting a “bona fide occupational qualification” based on the essence of its business model. Hooters states that the “Hooters Girl” is the foundation of its business. Which is precisely why Hooters is allowed to continue this business model. It is also another reason why we see no male centerfolds in Playboy, but rather that of Playgirl, and no female centerfolds in the latter magazine. 

Stephens continues to argue, and with emphasizes, that it mattered not if Congress understood Title VII to encompass transgender discrimination during its 1964 enactment having no bearing on how the Court should determine the statute’s meaning and application present day of that case. This inherently flies in the intent and purpose of the Court to include legislative history in the laws intent and purpose behind its creating and passing in correcting wrongs that have subsequently been made illegal. Ignoring that history of legislative intent and making up terms, intent and meaning of a historical law to fit a present-day issue far removed from the historical law is nothing but judicial activism (i.e., legislating from the bench). And that is EXACTLY what Justice Gorsuch did. 

This argument of Stephens is a patent false equivalency fallacy: "Stephens analogizes an employer’s decision to fire employees for their transgender status to the impermissible act of terminating employees because they changed religions." Religion is "specifically" referenced in Title VII, transgenderism is not. Therefore, there is no equal comparison, period. 

Sex stereotypes do not come into legal argument in this case either, despite the arguments Stephens made employing it. Stephens was born a man. He applied as a man. He was hired as a man. He worked as a man until such day without warning he informed the Funeral Home he wanted to be employed as a woman when in fact he is/was not a woman. That is an act of fraud, but also a change in employment terms that an employee has no authority to make. Only the employer can change terms of employment conditions, not an employee. Therefore, the funeral home terminating Stephens had nothing to do with a sex stereotype as he was not being discriminated as a biological female employee, but rather that of the obvious: a biological male employee making unrealistic expectations upon his employer to change the terms of his employment with the employer for which he had no legal authority to affect or force upon the employer. 

IMO, Justice Gorsuch legislated from the bench via judicial activism and read into Title VII that which was simply not there, nor supported by the legislative history, intent and purpose of the Civil Rights Act of 1964.

Prove me wrong.