ColonizationOnce again, we're a stepping stone

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[–]julesburm1891 22 insightful - 1 fun22 insightful - 0 fun23 insightful - 1 fun -  (9 children)

Did they ever really care about getting this legislation for gay people in the first place?

Clearly not as they’ve insisted on protection for homophobic parents and doctors to “fix” kids every step of the way.

It does beg the question of why, exactly, should LGB people care about trans “rights” at all if the trans lobby will do everything in its power to curb pro-LGB legislation. Even if this law wasn’t directly harmful to us, attempting to hold our rights hostage in political theater is not how allies are made.

[–]ChunkeeguyTeam T*RF Fuck Yeah 14 insightful - 1 fun14 insightful - 0 fun15 insightful - 1 fun -  (8 children)

I care about their universal human rights, I just don’t support the rest the things they insist are rights: free surgery on demand, sex and affection from others, life long medical care, access to single sex spaces, no debate etc etc.

[–]julesburm1891 12 insightful - 1 fun12 insightful - 0 fun13 insightful - 1 fun -  (7 children)

I absolutely agree with you. Trans people are deserving of human rights. They ought not face barriers to housing, healthcare, the law, etc.

I put rights in quotations because nearly all of what they’re asking for aren’t rights, but very unreasonable wants. Stealing a girl’s athletic scholarship isn’t a right. Having the public subsidize elective cosmetic surgeries and hormone treatments isn’t a right. Exposing yourself to unwilling individuals in locker rooms and bathhouses isn’t a right. And on and on it goes.

However, and perhaps controversially, I do have some concerns about employment discrimination. There are sometimes reasons where sex does matter in the workforce. For example, there is no scenario I’d be fine with getting my yearly gynecological exam from a man. (For men who aren’t aware of how that works: the doctor literally sticks his or her fingers in your vagina for a good portion of the exam.) I hold the same sentiment for people law enforcement who’d search my person, rape counselors, massage therapists, estheticians, etc.

I’m not saying that transwomen or non-binary men can’t be those things. I’m saying that there needs be a required disclosure process to ensure actual consent in any role where people could reasonably want to only work with one sex or the other.

[–]PenseePansyBio-Sex or Bust 9 insightful - 1 fun9 insightful - 0 fun10 insightful - 1 fun -  (3 children)

Very well-put, Jules (as usual!).

I also have some reservations about employment discrimination. Should employers really be required to overlook trans people's propensity for disruptive behavior? What if they don't want to hire someone who'll be bugging everyone about pronouns, demanding "validation", making female coworkers afraid to use the restroom, and having meltdowns? Shouldn't they be free to restrict their workplace to those who will, you know, actually do their damn job? I sure wouldn't want one of these raging narcissists around! And that seems to account for an awful lot of trans people. It often seems to me that you should really only hire them if your business is endless pronoun-circles and obsession with gender. Otherwise, the people who work for you have better things to do.

[–]Mikulbleu 6 insightful - 3 fun6 insightful - 2 fun7 insightful - 3 fun -  (0 children)

Omg they are totally great coworkers who don’t tell sexually explicit jokes at work and talk about how much they suffer over the mildest inconveniences. Or hide in the back and not talk to customers saying “my social battery is drained”

[–]julesburm1891 4 insightful - 1 fun4 insightful - 0 fun5 insightful - 1 fun -  (1 child)

Thanks, Pansy! That’s so sweet of you. ☺️

[–]PenseePansyBio-Sex or Bust 2 insightful - 1 fun2 insightful - 0 fun3 insightful - 1 fun -  (0 children)

Aw shucks, Ma'am... twern't nuthin' [blushing happily]

[–]yousaythosethingsFind and Replace "gatekeeping" with "having boundaries" 8 insightful - 1 fun8 insightful - 0 fun9 insightful - 1 fun -  (2 children)

There's a framework for this within U.S. anti-discrimination law: the bona fide occupational qualification (BFOQ), whereby an employer is permitted to consider certain protected characteristics when reasonably necessarily for normal operation of the particular business.

[–]julesburm1891 3 insightful - 1 fun3 insightful - 0 fun4 insightful - 1 fun -  (1 child)

Okay, I’m not a lawyer and I have questions.

  1. BFOQ is the thing where a Chinese restaurant can only hire Chinese waiters, right? Or have I got it wrong?

  2. While there are reasons a person would only want certain services from one sex, there’s no reason both sexes couldn’t do these jobs. Sticking with the gynecologist example—I will only see a female gyno, but I have a family member who will only see a male. There’s no reason a guy couldn’t do the job, but are definitely a reason women might not want to receive an exam from him. Normally, I would just make an appointment with Dr. Jane Smith and my MIL would make one with Dr. John Smith. The problem I see arising is either of us arriving at the office to discover it’s not actually what we were agreeing to. Could BFOQ be used to require upfront honesty in situations like that?

  3. R.G. & G.R. Harris Funeral Home vs. EEOC. As a layperson, I thought the funeral home had a fair point. Stephens’ job was to work directly with grieving families and didn’t pass at all. (He really sounded like classic AGP.) I can see why expecting people experiencing loss to just be chill with working with an obvious man in a skirt would be distracting, disconcerting, and bad for business. (I mean, if I had to choose between two funeral homes while arranging a family member’s funeral, I wouldn’t choose the one where IT’S MA’AM would make the whole thing weird on top of sad and stressful.)

That’s not to say a trans person couldn’t be a funeral director. I don’t think it would be a problem if it was someone like Blaire White was in the job. Even though this was somehow the case that went to the SCOTUS could BFOQ be used in cases like this?

[–]yousaythosethingsFind and Replace "gatekeeping" with "having boundaries" 3 insightful - 1 fun3 insightful - 0 fun4 insightful - 1 fun -  (0 children)

I learned about BFOQ while in law school years ago but I've been racking my brain and I don't think I've dealt with it in my practice and definitely not a sex-based BFOQ, so my knowledge is rusty, I'm not on top of notable recent updates to this area of employment discrimination law, and this kind of stuff is super hypertechnical. This is why law firms get paid hundreds of thousands to millions to research and put together appropriate analysis and arguments in this space. 💰💰💰 Not to mention the particularities of the law are going to vary by jurisdiction. In employment discrimination law, there are generally federal and state laws that apply, as well as local laws particularly in liberal, urban areas. So that's an important disclaimer. I wouldn't be surprised if there is some relevant briefing out there on this but legal research is expensive as hell and time-consuming so I'm not in a position to provide any earth-shattering answers at this time.

BFOQ is the thing where a Chinese restaurant can only hire Chinese waiters, right? Or have I got it wrong?

Yes, this is a common usage of the BFOQ defense. A Chinese restaurant seeking only Chinese wait staff or a French restaurant seeking a French chef though national origin is a protected category. Or a religious school requiring its staff to be of the same religious denomination as the school when religion is a protected category.

As to sex as a BFOQ, here is a source that aims to compare the states' sex discrimination laws. You can search "BFOQ" across them. However, I note that this source, as most sources do at this point, incorrectly state that Title VII protects against discrimination based on "gender identity." This infuriates me because that is not what SCOTUS held in Bostock. They specifically recognized "transgender status" not "gender identity" as inherent to the prohibition of discrimination based on "sex" and the fact that they did not explicitly recognize "gender identity" is meaningful. Especially when they emphasized the actions the trans plaintiff Aimee Stephens took to effectuate the transition. In fact, I think it is likely that Gorsuch took on this opinion to make sure it did not include recognition of "gender identity."

There does appear to be some precedent for sex as a BFOQ where it concerns the consumer's privacy interest that goes to the essence of the organization's business. There is some contrary information out there, but to parse through that requires looking up the cases cited by the sources and also assessing the bias of the source. And understanding the details requires fluency with our legal system and the relevant legal framework (which non-lawyers do not tend to have). For example, the EEOC Guidelines are a helpful start to research but they tend to have an employee-friendly slant, and hence they tend to overstate the state of the law where there's ambiguity. Notably, their guidelines and opinions are not themselves law. All of that said, per a secondary source from 2021:

Unfortunately, while courts and the EEOC agree that the BFOQ exception is a narrow one, courts remain divided on which employment circumstances fall within the exception. This lack of clarity persists because the Supreme Court has interpreted the statutory text of the BFOQ to mean discrimination is only permitted if the disallowance of discrimination undermines the “essence” or “central mission” of the business, yet the Court has not established a clear methodology to determine a business’s “essence” or “central mission.” A survey of Title VII case law reveals that courts most frequently deem sex a proper BFOQ when the gender of employees impacts the safety or privacy interests of the business’s audience

(emphasis added). Note that pivot from "sex" to "gender." They put together the following string cite for that last point.

See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 333-36 (1977) (emphasizing the inability to maintain prison security as a partial justification for deeming sex a BFOQ for a prison guard role); Int’l Union v. Johnson Controls, 499 U.S. 187, 206 n.4 (1991) (noting privacy could serve as a justification for a BFOQ under the “essence of the business” test); Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 740–41 (6th Cir. 2004) (holding that female gender is a BFOQ for guards in female prisoner housing units because it would decrease the likelihood of sexual abuse and other security issues); Fesel v. Masonic Home, Inc., 447 F. Supp. 1346, 1352 (D. Del. 1978), aff’d, 591 F.2d 1334 (3d Cir. 1979) (recognizing the privacy interests of residents in a retirement home who would prefer a nurse aide of the same sex); Norwood v. Dale Maintenance Sys., Inc., 590 F. Supp. 1410, 1423 (N.D. Ill. 1984) (holding that the fact that a washroom attendant could see men using the facilities was a sufficient justification to make sex a BFOQ to protect privacy interests).

None of those cases would have addressed gender identity or transgender status, and at the time of each of those decisions, to the extent "gender" was actually used in the cited opinions, it would have been used as a synonym of "sex," which is the language used in Title VII. And as I mentioned above, the Bostock opinion did not recognize anything to do with "gender" or "gender identity" either (even though liberal sources and media treat it as such).