Tuesday, June 16, 2020

Because of sex

There was a striking coincidence between the legal reasoning in the Supreme Court's opinion outlawing employment discrimination against gay and transgendered people, and the reasoning of Judge Gorton when he denied Harvard's motion to dismiss the federal suit against the University filed by certain single-gender organizations. I wrote up that decision in a post called But For, because the key point in the opinion was that Harvard was discriminating on the basis of sex because it would not have been against Harvard policy for a woman to join an all-male Final Club or fraternity. The fact that the club would not have welcomed her was irrelevant.

In the opinion written by Justice Gorsuch in the momentous Supreme Court decision earlier this week, an almost identical fact pattern was at stake."Clayton County, Georgia, fired Gerald Bostock for conduct `unbecoming' a county employee shortly after he began participating in a gay recreational softball league." Had he been a woman joining that league, she would not have been fired. But for his sex, he could have kept his job and joined the league. So he was fired because of his sex. 

That is sex discrimination and unlawful under federal law, we now know. Of course Harvard's clubs do not present an employment situation. Still, if the case goes to trial it seems ever clearer that Harvard is going to have a hard time explaining why its policy against students joining single gender organizations is not sex discrimination. I have no idea what the state of play in that case is, and actually hadn't thought about the Harvard clubs for quite awhile; but Gorsuch and Gorton certainly sound a great deal alike!

1 comment: