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A Continuing Evaluation of the Recent Supreme Court Decision (copied article)

Bostock and the meaning of words

I have now read both the petition from Bostock and the response from Clayton County. I have not yet read the transcript of the oral arguments or the Court decision itself because I am working my way through these documents in chronological order.

The sum of the two arguments is this:

  • Bostock argues “sex” in Title VII should include “orientation” because (1) lower courts are split, and (2) you cannot consider a person’s orientation without considering his “sex.”
  • Clayton County replies that (1) lengthy precedent says “sex” does not include orientation, (2) “sex” on its face did not mean orientation in 1964 so it cannot mean it now, (3) Bostock should solve this issue via legislation, (4) his petition is a “thinly veiled” ploy to have the Court legislate because Congress will not change Title VII to include “orientation,” and (5) the entire case is pointless because the county terminated Bostock for issues unrelated to his orientation and claims it has documents to prove it.

The most important thing to do is define terms. What does “sex” mean? What does it really mean? What does “sexual orientation” mean? What about “discriminate?” We all think we know what they mean, but what do they really mean?

The Oxford English Dictionary (“OED”) is the definitive, most authoritative lexicon in the English-speaking world. You need a subscription to access it. I have one. Heh …

Cobbling together the relevant OED definitions for “sex,” “orientation” and “discriminate,” we can construct an objective definition for “discrimination because of sexual orientation” as something like this:

treating a person in an unfair or prejudicial manner (OED, s.v. “discriminate,” v., 4) because of his emotional attitude and appetite with respect to sexual partners (see OED; s.v. “orientation,” n., 3).

This is a fair and conclusive definition of the concept at issue in Bostock, whose case hinges (in large part) on proving that discrimination “because of … sex” (i.e. being male or female; OED, s.v. “sex,” n., 1a, 2) is analogous to discrimination “because of … emotional attitude with respect to sexual partners.”

Bostock does not attempt to define either term. Instead, he argues that discrimination because of orientation is as “reasonably comparable [an] evil” as discrimination because of sex. I hope the bankruptcy of this position is becoming clear, if it ever was in doubt. “Sex” is about biology, but “sexual orientation” is about emotional attitude, belief and appetites regarding sexual partners.

You may disagree. But, you have no basis other than juvenile emotion upon which to stand. Define your words, and you define the very meaning of language. Cite your lexicon of choice to argue for different definitions of the terms at issue. I shall wait.

You can’t do it. That should mean something.

I am now starting the transcript of oral arguments …A