On the other hand, the entire idea of transgenderism is based on sex. Without sex, transgenderism doesn't exist. So by discriminating on the basis of if a person is transgender, you are by extension discriminating based on their sex.

The counter to this would be that these bans aren't discriminatory on the basis of sex because the same rule applies to both sexes. It all depends on how you want to look at it. It can either be:

(1) People can't have same sex relations

(2) Women can have relations with men but men can't have relations with men.

Practically they are the same, but (2) discriminates on the basis of sex while (1) does not.

> Practically they are the same

If they are the same then how can one way of stating it be discriminatory and the other not discriminatory? It's just word games. If the effect is discriminatory why does it matter how you wrote the law?

They're both discriminatory. The question is what are you discriminating against?

(1) references the subject's sex less directly, but it is clearly still referencing it, and thus is discriminating based on sex.

It's perhaps in 1964 many of those voting would not have thought of transgender folks... on the other hand we also expect these laws to be applied fairly. A random house member might have some constituency in mind, and not everyone else, but is that the basis for not protecting someone under the law?

I worry that going too close to the line of "what would a house member from rando time period want" becomes a strange place of conjecture.... and frankly relies heavily on a sort of mind reading / our own biases of the past... and legislators who are not bound by reason, existing laws, or any sort of absurd contradictions.

But perhaps that's always the judicial quandary. How closely to follow the letter of the law passed when it may not pass a constitutional test, or even just logic test.

Unimaginable? Why? The Stonewall riot happened in 1969 and it wasn't the first action by and in support of transgender people in the US. In what year would it have been imaginable, for you?

https://en.wikipedia.org/wiki/List_of_LGBT_actions_in_the_Un...

Here is the court's response to this argument[0]:

> "The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574.

> "While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message.

> "Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn." (emphasis added)

---

From my understanding, the court is looking at this law as it is interpreted in "plain terms", which is from the point of view of "how would an average Joe or Jill on the street understand x?", in this instance, x being title VII's concept of "discrimination based on SEX".

The way the court sees it, if you fire a GUY for liking GUYS, but don't also fire a GIRL for liking GUYS, that is different treatment based on sex.

They then state that if you respond, "Woah, that may be a valid interpretation of the words, but its never been APPLIED like that before", tough luck. Its the court's job to re-interpret and clarify rules and fully within their ability to do so.

(Edit: I re-read the opinion and found a different summary more appropriate.)

[0]:https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

Textualism != Originalism

Gorsuch, in the majority, asserts that textually, the words written would and do indeed cover discrimination of gender identity and sexual orientation by extension of sex. Textually meaning regardless of whatever the original intent was, ie it doesn't really matter if they were considering transgender people in that list

Let's apply the same logic to the 2nd amendment!

Only flint-lock muzzle loaders allowed.

Flint-lock muzzle loaders, private warships, hand crank machine guns, etc.

> hand crank machine guns, etc.

Rotary cannons were not invented until the mid 19th century, so long after the American Founding Fathers and the drafting of the first amendments to the Constitution.

That doesn’t logically follow, the 2A precludes government restriction rather than permitting one owning a particular weapon.

We actually do. Do you know anybody with a mortar tube?

You can own a mortar tube in the US. It's classified as a "destructive device" so you might have to fill out some extra forms, and it's probably hard to find someone who will sell it to you.

Do you know anybody in the 1700s with magfed rifles?

Not that I'm aware, but they did have privately owned cannons firing grapeshot; veritable WMDs. Grenades were also a well established concept back then, though I don't know what the history of private grenade ownership in America is.

"What the writers had in mind" is one way of interpreting laws in the present day, but by no means the only way. You will probably find a ton of laws in effect today that are applied to things, or interpreted in ways, that no one could have anticipated when they were written.

The thing is that the concept of transgender and homosexuality both existed and were recognized at the time. This isn't extending law based on telegraphs to computers; this is extending law based on telegraphs to horse-based mail delivery.

That said, clearly these classes should be afforded the same protections; I'm just more comfortable with our legislators making that explicit in the law rather than courts arbitrarily expanding the scope of the law. There is at least one attempt, [1], that is still in progress; hopefully now that the courts have made it moot it will be easier to pass this to codify the result.

[1] https://www.congress.gov/bill/116th-congress/house-bill/5

Why bother writing laws if the mindset of legislators is all the matters? Members of Congress could submit daily diaries for the record, and then the Supreme Court could try to imagine what they might have been thinking 60 years ago whenever an issue comes up.

Please read the decision, it's a very straightforward reading of the law. Transgender discrimination is sex discrimination by definition.

Not really. This scans from a textualist perspective, which is one approach to law greatly encouraged by conservative judges.

You throw away A LOT of law without textualism.

It's a good thing this view isn't taken on free speech or you'd have to rely on legislation to make it legal to publish your post online.