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That’s one thing that is clear about the order the Supreme Court issued on Monday adding to its docket three cases on whether current federal law protects L. Three or four “relistings” would not be particularly noteworthy these days. The court had the three petitions under active review beginning in early January, and the cases were taken up 11 times at the justices’ weekly private conference.Both versions of the questions, from the Alliance Defending Freedom and the court, invoke the case of Price Waterhouse v. This 1989 decision expanded the concept of discrimination to hold that an employer who penalizes an employee who doesn’t conform to a stereotypical idea of the proper appearance or behavior for that person’s gender can be found to violate Title VII.
My guess is that they were simply being carried along while the justices were negotiating about how to proceed with the transgender case. The employer had won in the Bostock case in the United States Court of Appeals for the 11th Circuit, while the gay employee had won in the Altitude Express case in the United States Court of Appeals for the Second Circuit.The funeral home had a dress code for its funeral directors that required men to wear business suits and women to wear jackets and skirts.When Anthony Stephens, soon to become Aimee, informed that funeral home’s owner that part of the transition process would involve dressing and appearing as a woman before gender reassignment surgery, the owner replied, “This is not going to work out.” The owner later testified that he fired Anthony Stephens because “he was no longer going to represent himself as a man.He wanted to dress as a woman.”There is a body of employment law holding that differential dress codes for men and women don’t ordinarily amount to sex discrimination.So if that’s the question for the Supreme Court, Aimee Stephens loses on that score as well.This is the type of division over the core meaning of a federal statute that the Supreme Court views as its obligation to resolve.While the court granted review in both cases, it has consolidated them for a single one-hour argument, probably in November and probably on the same day as the transgender case. I offer my analysis less as a prediction than a caution against jumping to conclusions. He is one of the judiciary’s more prominent conservatives and a judge whose opinions get the attention of conservatives on the Supreme Court.The cases “could demolish sex discrimination law as we know it,” Mark Joseph Stern wrote on Slate. Equal Employment Opportunity Commission, the justices rejected the questions posed to them by the employer, which lost in the lower court and consequently is the petitioner in this case.I don’t mean to single out two writers whose consistently smart Supreme Court analysis I admire. The employer, a small chain of funeral homes in Michigan that dismissed a longtime employee who was transitioning from male to female, is represented by Alliance Defending Freedom, a prominent Christian-right litigating organization.But here’s the thing: The court indicated on Monday that it is not going to do that. Hopkins.”The difference between the two approaches to the case is clear.The answer to Alliance Defending Freedom’s first question is obviously “no” — gender identity wasn’t on the screen for Congress or for most of society in 1964.