Many businesses have a "front of the house" consisting of people that interact with customers, clients, etc., and a "back of the house" that might be comprised of warehouse workers, etc. Many businesses in the south used to only hire white people in the front of the house, and only men in the back of the house.

After civil rights laws came into effect, many of these businesses argued that their hiring wasn't racist, because they employ lots of black people (in the warehouse). And they're not sexist, because they employ lots of women (in the front of the house). But if you're a black woman, you're still out of luck. Because of this, the courts ruled that these policies are still considered discrimination on the basis of sex/race. Yes, these hiring policies weren't discriminating against ALL women, but just a subset (women who happen to be black). Or looked at differently, a subset of a race (black people who happen to be women). Either way, it's still discrimination against a protected class - both intuitively, and by law.

Similarly, this decision states that firing someone because they're lesbian or gay would be discrimination against a subset of women (women who are attracted to women), or a subset of men (men who are attracted to men).

In cases involving the protections of individuals, you can't start by looking at the aggregate of all the people working at the company, and analyze the company hiring policy, attribute-by-attribute (e.g. sex, race, etc)., in isolation. It'll still lead to discrimination, because each individual has many attributes, and the combination of those attributes can be the source of the discrimination.

Instead, you have to start with the individual affected person who brought the case forward, look at all of their attributes, and if changing any one (protected) attribute (in this case, sex) would lead to a different hiring/firing decision, then it's considered discriminatory.

First, I'm not convinced this rule is actually in accord with the plain language of the statute. Kavanaugh's dissent argues that, for decades, all three branches of the Federal government--Congress, the Executive, and the Supreme Court itself--have taken "discrimination because of sex" and "discrimination because of sexual orientation" to be two separate and legally distinct categories of discrimination. The majority opinion simply ignores all that prior evidence about how the Federal government has interpreted the plain language of the statute.

Second, it's not clear to me that the hypothetical the majority is using here is the correct one. One of the key grounds given by LGBTQ individuals for their right to equal treatment is that those traits are innate. But if, for example, sexual orientation is an innate trait, then changing a man attracted to men into a woman attracted to men is changing more than just that person's sex: it's changing their sexual orientation as well. In other words, the Court's hypothetical is not "changing just one thing, leaving everything else the same", as it claims to be.

On this view, which is a better reflection of the views LGBTQ people are actually advocating, the proper hypothetical for changing just the person's sex, leaving everything else intact, would be to change a man attracted to men into a woman attracted to women. And in that hypothetical, the hiring/firing decision would not change; and by contrast, in corresponding hypothetical where you only changed sexual orientation, not sex (so changing a man attracted to men into a man attracted to women), the hiring/firing decision would change. Which leads to the opposite conclusion from the one the majority makes.

I think you're confusing "innate" with some sort of epistemic primacy. If I am heterosexual because I innately consider myself a man and I innately prefer women as partners, it is also case that I am "innately heterosexual", regardless of which of those facts are encoded explicitly and which is inferred. It's a trick of the structure of our labels things that we can't change "just one" of those three things.

No, I'm saying that what counts as "changing just one thing" is not cut and dried. The majority opinion takes it as too obvious to need argument that changing from a man who is attracted to men, to a woman who is attracted to men, is changing just one thing, leaving everything else the same. My argument is that it is just as consistent to say that that change changes two things--sex and sexual orientation--not just one. Which means the majority's claims are no longer obvious--but the whole majority argument rests on them being obvious. The majority claims to simply be laying out the plain language of the law. It's not.

> One of the key grounds given by LGBTQ individuals for their right to equal treatment is that those traits are innate. But if, for example, sexual orientation is an innate trait, then changing a man attracted to men into a woman attracted to men is changing more than just that person's sex: it's changing their sexual orientation as well.

The point that you claim to be reiterating is reasonable - what constitutes "a single change" depends on our choice of representation and it's not at all obvious what we should choose. I am undecided as to whether this significantly undermines the argument of the majority, lacking quite a bit of context.

But I am saying that choice of representation, or ambiguity thereof, does not follow from any particular understanding of what is and is not "innate".

Perhaps "innate" is not the right word, but what I meant by it is simply that, in the view of LGBTQ individuals and supporters, sexual orientation is the same kind of property of a person as biological sex is, whatever word you want to use to describe that kind of property.

I think "innate" is a fair description of that.

But I don't know that there's any particular beliefs about whether that property (sexual orientation) as encoded directly in the brain[1] is "prefers men" or "homosexual", which I think is what we're discussing here. This is why I suggested "epistemic primacy" - whether other things we can say follow from "homosexual" or whether it follows from other things.

[1] for those who even subscribe to a physical understanding of consciousness - we're talking about a diverse group; otherwise we can possibly find an equivalent notion

Hm, yes, I see your point. I was assuming it was the latter, but it might not be; it would depend on the details of what's going on in the brain and the rest of the body.

The discussion in this thread has made me fully appreciate, while this might be a step forward for human rights, these protections really do need to be explicitly codified in law as well. Not just because they're resting on fragile interpretations of existing law, but also because this interpretation wouldn't necessarily extend to bisexuals, asexuals, etc.

They were each fired for something someone of the opposite sex would not have been fired for, so, in both cases, they were fired on the basis of sex since their sex was a sine qua non of the firing.

It's possible for a firm to have two closely related discriminatory policies, one of which discriminates against each sex. They don't net out to nondiscrimination, but instead provide causes of action for discrimination for those harmed by each policy.