By Emmanuel Samonte Tipon
“So God created human beings in his own image. In the image of God he created them; male and female he created them.” Genesis 1:27, New Living Translation.
“Haven’t you read the Scriptures?” Jesus replied. “They record that from the beginning ‘God made them male and female.’” Matthew 19:4, New Living Translation.
On June 15, 2020, the United States Supreme Court created a third sex – homosexual or transgender. Attorney Tipon said: “Susmariosep!” “Then Jesus said, ‘Father forgive them; for they know not what they do.’” Luke 23:34, King James Version.
In Bostock v. Clayton County, Georgia and two other cases, No. 17-1618, involving 3 employers who allegedly fired employees simply for being homosexual or transgender, the Supreme Court on June 15, 2020, held, 6-3, that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights, 42 U.S.C. 2000e-2(a)(1) which provides that it is unlawful “for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual… because of such individual’s… sex …”
The issue was the meaning of “sex” in Title VII. The employers said that the term “sex” in 1964 when the statute was enacted referred to status as either male or female as determined by reproductive biology. The employees conceded the point for argument’s sake.
But Justice Gorsuch said that an employer violates Title VII when it intentionally fires an individual based in part on sex. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred. It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
The majority rejected the employers’ contention that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referred to them specifically. The majority said that when Congress chooses not to include any exceptions to a broad rule, the Court applies a broad rule.
MAJORITY ENGAGED IN JUDICIAL LEGISLATION
In Justice Alito’s strongly worded dissent in which Justice Thomas concurred, he said that there is only one word for what the Court has done today: legislation.
Justice Alito noted that Title VII prohibits discrimination because of “sex” and in 1964 “this meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth.” He had not found a single dictionary that defined “sex” to mean “sexual orientation, gender identity, or transgender status.”
Justice Alito said that the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.”
He pointed out that neither “sexual orientation” nor “gender identity” appears in Title VII. He recalled that for the past 45 years bills have been introduced in Congress to add “sexual orientation” and “gender identity” to the list but none has passed. He said that the majority usurped the constitutional authority of the other branches in the guise of statutory interpretation.
Justice Kavanaugh also dissented saying that the question is whether Title VII should be expanded to prohibit discrimination because of sexual orientation. He pointed out that under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress, not to the Court. We are judges, not members of Congress, he said, and our role is not to make or amend the law. “Judges interpret the law as written, not as they might wish it were written.”
ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. His current practice focuses on immigration law and appellate criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. Listen to The Tipon Report which he co-hosts with son Noel, the senior partner of the Bilecki & Tipon Law Firm. It is the wittiest, interesting, and useful radio program in Hawaii. KNDI 1270 AM band every Thursday at 8 a.m. Atty. Tipon served as a U.S. Immigration Officer. He co-authored the best seller “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration process. He first came to the United States on a student/ exchange visitor visa to study at Yale. He returned to the Philippines to resume practicing law. He came again to the United States on a non-immigrant work visa to write law books, adjusted his status to that of a lawful permanent resident, and became a naturalized citizen. Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645. E-Mail: firstname.lastname@example.org. Websites: www.tiponlaw.com , www.hawaiianimmigrationattorney.com, www.bileckilawgroup.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon the contents of this article.