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.

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