In Bostock, the Supreme Court held that a refusal to hire, say, a man who is attracted to men is discrimination on the basis of sex if one wouldn’t refuse to hire a woman who is attracted to men.
The idea is that a rule is discriminatory if it precludes a man from doing something that a woman is permitted to do or vice versa.
This would have the curious consequence that various laws that seem on their face to be non-discriminatory would nonetheless be discriminatory. Here are three examples:
Laws against perjury and against lying to law enforcement prohibit, in certain circumstances, a man from saying “I am a woman”, but do not prohibit, in the same circumstances, a woman from saying the very same words.
Laws against incitement of violence will often prohibit a male speaker from yelling to a crowd: “If I am a man, go riot!” but will not prohibit a female speaker from yelling the very same words to the same crowd.
Libel laws make me liable for asserting “Either colleague x is a plagiarist or I am a woman”, when I know x to be innocent, but do not make my female colleagues liable for saying the very same words under the same circumstances.
These cases show that it is quite difficult to define discrimination.
Alex
ReplyDeleteAs I said in my comments your previous post about Bostock, it may very well be that some kinds of discrimination are justified, and if so, the law should be adjusted to fit those cases.
In refusing to hire a man because he is attracted to man should be outlawed by any country that calls itself civilized. The fact that there is even discussion about this makes me fear that there is a lot more wrong in the US apart from Trump.
If we bite the bullet and say that laws against perjury or incitement of violence discriminate--whether justifiably or not--on the basis of sex because of examples like mine, then we have to say that laws against perjury or incitement of violence discriminate on the basis of *every* discernable trait: sex, race, age, religion, eye-color, disability, height, weight, overall electric charge, etc. For in the case of every discernable trait, we can come up with analogues to my examples. But if simply by legislating "Do not lie under oath" one has discriminated with respect to every discernable trait, then I think the concept of discrimination is the wrong concept to work with, and we should come up with an alternate, better concept to analyze the kinds of cases that discrimination was used to analyze.
ReplyDeleteThat said, I think that replacing the concept of discrimination with another should not be resorted to yet.
Intuitively, "Do not lie under oath" does not discriminate on the basis of height. It discriminates on the basis of lying. On the other hand, "Pay $10 in tax per centimeter of height" clearly discriminates on the basis of height. We now need an account of discrimination that does justice to these intuitive claims. I don't have such an account: I am more of a counterexample guy than a definition guy.
I suspect that such an account will have the consequence that refusal to hire a someone because they are attracted to persons of the same sex constitutes discrimination on the basis of attraction rather than on the basis of sex. However, I could be wrong about this: it is epistemically possible (but of low probability) to me that the right account of discrimination entails that discrimination on the basis of same-sex attraction is discrimination on the basis of sex. But I still think the right account of discrimination, whatever it is, had better not have the consequence that perjury and incitement laws discriminate on the basis of height and eye-color. And the Supreme Court's reasoning does have that consequence, so I conclude that their account of discrimination is flawed.
I am not addressing here the question of what forms of discrimination are justified or should be legal.
It looks like whether a perjurious statement has to be false varies between jurisdiction. As I read the US federal definition, you can still commit perjury by saying something true, as long as you believe it to be false. (It would be hard to prove!) But in at least some states, only saying something false counts as perjury. My argument doesn't apply to the federal definition. For on the federal definition, whether "I am a woman" is perjury doesn't depend on whether the speaker is or is not a woman, but only on whether the speaker believes they are or are not a woman. But in a number of states (Nebraska and Texas came up, but surely there are others) for a statement to be perjury it has to be actually false. Thus, insincerely saying "I am a woman" is only perjury when it is not a woman who says it. (Of course, it would be rare for a woman to insincerely say "I am a woman", since most women know they are women.)
ReplyDeleteAlex
ReplyDeleteOf course you can can come up with analogues to your examples, that would mean almost every law is in some way disciminating. But tat the poijnt. The point is that the case against hiring someoen who is attacted to someone of the same sex cannot be made without discriminating, while a perjury case can.
"Do not lie under oath" applies to everyone, regardless of sex, colour, profession, or whatever, as would "do not have a relationship", but "do not have a relationship with a woman" does not apply to everyone. It only applies to men. So it is not
So it is not merely epistemically possible, I really don't see a way round it.
Laws against same-sex relations are not merely discrimination on the basis of attraction rather than on the basis of sex, they are discrimination on the basis of attraction as well as sex.
And, according to Gorsuch, a law entails sex discrimination even if it is only partially based on sex. So, it is not "low probability", it is very high probability, I would even say "certainty" that it is a matter of discrimination based on sex.
Alex
ReplyDeleteJust to add, when I said that it may very well be that some kinds of discrimination are justified, and if so, the law should be adjusted to fit those cases, I wasn't referring to your examples, but to examples that also clearly involve discrimination on the basis of sex.
The use of toilets, e.g. comes to mind. If the law says a man can only use men's toilets, I would consider that a case of discrimination on the basis of sex, but I agree there could be justification for this discrimination.
And that's what the law should provide.
Now, of course, the ideal situation would be that there was law against discrimination based on attraction, or sexual preference in the US.