I'd make three points...Prefatory, the case of so-called "hate crime" is instructive. Motive is not generally an element of an indictable crime. It is seldom -if ever- a proper part of the prosecution's or the defense's brief. It does have a cogent and obvious place in the penalty phase of a trial, after a conviction -- either as mitigation or enhancement of punishment.(True, both prosecutors and defense consul often use such when making their case to a jury... that's not important: The judge's discretion limits their excesses! Well, that's the expectation...)Codifying motive as a separable offence smacks of "thought-crime"!1. The trope of "disparate impact" is defective, in logic and in law. Statistical reasoning -as practiced- is too weak to support a charge on its own, and as such contravenes the ancient right of a defendant to know what precisely the charges are, against him!(To see how pernicious the rule of "disparate impact" can be, see Massachusetts v. EPA. It countenances the importation of the Precautionary Principle into American law!) 2. The conflation of sex and gender is uncalled for. "Sex" means physical, biological determinants, not moods or (mis)conceptions, in Title VII... Nor does it subsume "sex acts" or proclivities.3. The precidential status of dicta, properly called, needn't (I'd say shouldn't...) be elevated by judges to suit their own (or the supposed public's) understanding of changing mores: Writing law is the job of Congress.Title VII can (and perhaps should) be amended... But not by judges, who then make it the job of Congress to correct misapplication of their laws!So: Bostock was wrongly decided.
As an aside, the provision on sex might not even have made it in there if a racist hadn't been concerned that white women might have fewer rights than black men and women.
As Gorsuch writes, what matters is that the discriminators would not make this decision but for sex. That's what's in the text of the law. There's a pretense by Alito and Thomas that Gorsuch changed the meaning of sex, which he clearly did not, and that you can discriminate on gender without targeting sex, which doesn't make a lick of sense. (emphasis added)
The funny thing is of course that pedophilia and what not are also sexual orientations (how would you argue that they are not?), so does it really serve a sensible purpose to explicitly normalise any and all sexual orientations?
ersi said on 2022-01-06, 00:56:29: "As to 'interpreting' that Oakdale has an issue with, it so happens that whenever you read a text, you are interpreting it. Inevitably. It is impossible to not interpret."It's quite literally the job of the courts to interpret the law. That's what they're there for. Otherwise they'd serve no purpose.
There's a pretense by Alito and Thomas that Gorsuch changed the meaning of sex, which he clearly did not, and that you can discriminate on gender without targeting sex, which doesn't make a lick of sense.
The list is bad form for rights that everyone should have. The list would be a better form for necessary distinctions to be made, but the point of this law is "don't discriminate", instead of "do differentiate". Normally such laws employ an exception list instead, e.g "everybody is equal, except high state officials have privilege, legal might has superiority and bigger capital has priority." I.e.a negative list, not a positive list.
All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on thegrounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not bepermitted.
I reject the contention of obscurity in language usage that makes personal interpretation the standard: that's no standard at all.
But as ersi points out,
What privileges your interpretation?
When the statute in question uses language easily understood on the basis of documented common usage and supported by contemporaneous reference works, what justifies the "new" interpretation?
It's telling that you'd rehash your example of the law against kidnapping from the 1600s to the 1900s:How do you justify making the means of transport a "but-for" element of the crime? (Remind me, please...)
Oakdale, the problem is far beyond the interpretation of the word "sex". Luckily for Title VII, it specifies "in the workplace", so everything outside the workplace should be a non-issue.
The law is messed up on this point, not on the word level, but on the section level or even on the principle level. Those whose job is to apply/interpret the law as written are f'd, fairly literally. Some judges try their best to not be ridiculous. The majority try their usual veiling of ulterior motives. None of them will admit the law is letting them down.
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