Osler's Razor

I have been devoting Wednesdays to profiles of my remarkable classmates in the Yale Law School class of 1990. 

There are moments in school that you remember for the rest of your life. I hope that once or twice I have provided that moment for my students. 

One of those moments for me came in a law school class-- I don't even remember which one. We were talking about discrimination based on sexual orientation; that is the ability of employers, retailers, states, and others to openly discriminate against gay men and lesbians. There were the usual positions staked out, of course: many students argued that this discrimination was wrong, and others argued that it was ok both legally and morally.

Then, one student made a point that stuck with me and deeply influenced my thinking going forward. He (or maybe she, though I seem to remember it was a guy) asserted that, in fact, discrimination against against gay men and lesbians violated Title VII of the Civil Rights Act of 1964, because discrimination against them was fundamentally discrimination based on sex (a type of discrimination that is expressly covered under that law). In essence, he said this: take the set of people who are attracted to men, a group that includes both men and women. Among that group, biased employers would discriminate against the (gay) men but not the (straight) women. The difference in the discrete group of people (who are attracted to men) between those suffering discrimination and those free from it was their sex, nothing more and nothing less. Men were fired. Women were not.

"Huh," I thought, as I pondered that. "He's right."  

And on Monday, the Supreme Court, through a majority opinion by Justice Gorsuch, used exactly that logic to find that gay men, lesbians, and transgendered people were covered by the protections of Title VII-- some 30+ years after after I first heard that argument.

And I can't remember who it was. I'm ashamed of that. But whoever it was-- good job. You convicted me of your position a looooong time ago. And now it is the law, to the benefit of millions of people, some of whom I love very much. 

At any rate, here is part of how Justice Gorsuch put it in the Bostick case:

"Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the  male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision."

The world changes slowly. But sometimes it does.