Bench Memos

Law & the Courts

The SOGI Saga Sags

As we wrestle with the question whether in 1964 (or even today) “sex” meant “gender identity” and/or “sexual orientation” — shouldn’t this be a short wrestling match? — I thought I would recycle a couple of Bench Memos posts of mine from when the same-sex marriage issue was pending before the Supreme Court. Just because you have to consider a person’s sex in making a decision, doesn’t mean that the decision will discriminate against that person because of sex. The analogy I’ll use is that we have to consider a person’s date of birth in deciding whether to throw them a birthday party, but that doesn’t mean that deciding not to throw them a birthday party is age discrimination — even though we also have to consider the person’s date of birth in deciding whether to engage in age discrimination. Likewise, we have to consider people’s sex in deciding whether their being attracted to men makes them gay, say, or whether they are transgender — but that doesn’t mean that we are therefore discriminating against them because they are male or female. We just need that datum to make another determination which is ultimately not about their sex, but about their sexual orientation or gender identity.

Most Popular

White House

Rachel Maddow’s Turnberry Tale

To a certain kind of Rachel Maddow viewer, there are few more titillating preludes to a news segment than the one she delivered Monday: “If you have not seen it yet, you are going to want to sit down.” Maddow’s story began, as many of her stories do, with President Trump, this time focused on his hotel ... Read More
Elections

The Problem with Pete Buttigieg

In a 2018 midterm election that didn’t give Republicans a lot to laugh about, one development that no doubt left them smiling was watching progressives across the country donate $80 million to Beto O’Rourke, in a Texas Senate race that was always going to be a steep uphill climb. Democratic party leaders can ... Read More