Nondiscrimination Law and the Equality Act

Is the Equality Act necessary to codify Bostock v. Clayton County? How might the Equality Act affect ...

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Is the Equality Act necessary to codify Bostock v. Clayton County? How might the Equality Act affect religious liberty, if at all? How do we definitively differentiate between men and women? Today, our hosts chat about invidious sex discrimination as it relates to the Equality Act, and what this law means for the future of nondiscrimination law if it is passed by the Senate. Stay tuned to hear our hosts recap oral arguments for Brnovich v. Democratic National Committee, a Supreme Court case that deals with the Voting Rights Act.

Show Notes:

-“The Equality Act Has a Foundational Legal Problem” by David French in The Dispatch.

–Radiolab Presents: Gonads.

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  1. Mathew A

    First, I think everyone should be treated with respect. That being said, I have a problem with the government telling employers they can't regulate employees/dress code at work.

    IE, if a man wants to dress in drag after work, more power to him. But the employer should be able to say what's an acceptable dress code at work.

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    Angie

    Great pod guys, thanks

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  3. Ted

    Sarah -- Very disappointed that you didn't reach for your buckets until the second half of the show! I wanted non-discrimination buckets! Also, very disappointed with David for actually reading the Equality Act and taking the time to explain that most of the claims that asteroids will strike the earth if it passes are not true. Seriously, so enjoy the rational and thoughtful discussion.

    One interesting note about the Arizona case; in Northern AZ, on the Navajo Nation, there is zero home mail service. In many counties, almost half of the population (regardless of tribal affiliation) in does not have home mail delivery -- mail is dropped at post offices boxes or drop box pods that can be miles from someone's home. Distances in AZ are tremendous -- many of the counties there are bigger than Connecticut -- so dropping off a ballot is not easy feat.

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  4. Richard C Jackson II

    Sarah, you pondered, for the military, why the standard shouldn't just be everyone's standard for a particular military specialty. As a former Commanding Officer of the Marine Corps' Officer Candidates School (OCS) I can explain why standards / requirements may be different for males and females. At OCS the charter is to screen and evaluate officer candidates for character and leadership potential. The method to achieve the assessment is through an infantry platoon commander's duties and responsibilities. Using a Leadership Exercise as an evaluation event I would not want the candidate to be at 100% of his capability so we would use physical exercise prior to the Leadership Event to get the candidate down to 75% of his or her capability. We might go on 7-mile conditioning forced march at a 3-mile per 50 minute pace with 30lbs of gear. However, if you are a 6' 1", 190lb male or a 5' 4" 135lb female, no matter how great shape the female may be in, the male will be under less physical stress than the female and he may potentially score higher on the subsequent Leadership Exercise. So objective equality and fairness of the conditioning forced march actually puts the female at a disadvantage for the subsequent Leadership Exercise evaluation. That's why you may have different standards to ensure the evaluation, not the outcome, is conducted equally / fairly while on the surface it might appear that females are doing less than the males.

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    1. Mathew A

      Fair enough, but if that 135lb female needs to carry her 190lb male squad mate, he's in trouble.

      IMHO, if females want to serve in combat arms, they should have do so under the same standard, not watered down requirements.



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      1. Richard C Jackson II

        Understood Matthew, that's why I stipulated that the evaluation was for character and leadership potential. Rest assured that every single person that attends Officer Candidates School far exceeds the minimum standards required (which I can assure you are very high...for example, passing score on the Marine Corps Physical Fitness Test before I retired was 135 points of a maximum of 300. To even attend OCS you have to have a minimum of no less than 225 points with 80% scoring over 270 points. The average in my platoon when I graduated OCS back in 1986 was 296 points...so physical fitness is not the issue) If you want to make the requirement that before anyone can become a Marine they must fireman carry 150% of their weight, I suppose that could be the standard but you'd be leaving lots of talent unable to complete that requirement. Back when I was an Infantry Company Commander the very first infantry training standard was to successfully complete a forced march of 40 kilometers (~25 miles) in 8 hours with over 50lbs of gear. That's the infantry standard, but not the standard necessary to demonstrate character and leadership potential. So a guy that's 5'6" tall that weighs 155lbs that can't meet that infantry standard but gives 100% on every task and can keep the supply warehouse in great shape, and takes responsibility for his actions and the actions of his Marines, if he has successfully completed Recruit Training and the Crucible (which demonstrates his determination to never give up until the mission is accomplished), why wouldn't we want him (or her) as a Marine? And the actual requirement, that gets evaluated yearly, regardless of age, is that as part of the Combat Fitness Test every Marine must be able to Fireman Carry a buddy of similar weight 75 yards within a time limit...that's the standard.

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    Kevin C. Smith

    I think David’s point about invidious discrimination is the key. If the government is going to reach into the private sector and regulate private interaction (because it’s in the public sphere), then allowing the government to restrict more than invidious discrimination is pernicious to say the least. It should be important to remember that a lot of litigation in this realm deals with regular folks engaging in behavior that is often objectionable but not invidious. I can’t imagine where the “goal posts” would be with the Equality Act.

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  6. Hanclair

    Re David’s point that race can never be a BFQ - undercover police officer. (Was asked this question in a job interview one time and I stumbled around sounding like that poor Miss America contestant who talked about opposite marriages).

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    Pastorfbt

    David, the overwhelming factor regarding the troughs at Belmont or any other stadium, is that most everyone in the line is half in the bag or worse.

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    Nathan

    The chromosomal/gonad discussion seems like a distraction. The real question is this: can people born as men compete as women? Sure, you might find some weird corner cases, but there's no debate on whether the runners beating girls in high school races in the northeast were born male. No one wonders whether Rachel McKinnon was born male or female or some esoteric third option.

    Sarah was doing a wonderful (like, seriously great; I was very annoyed at her for a moment) job playing Devil's Advocate, but the arguments she was advancing are the motte corresponding to the bailey of what's actually happening.

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      Michael Berkowitz

      To be fair to Ms. Isgur, it's not clear to me that she was arguing against sex-based policies in general, but rather that it's not clear they can be applied in all circumstances. If a woman sues to compete in a women's sport and is denied because of testosterone, a Y-chromosome or whatever, it's not clear (to me) that the complaint can be summarily rejected in these esoteric cases.

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    2. Icarus213

      This was exactly my reaction. Sarah's logic would basically take us to a place where if a law doesn't work for 100% of the population, it basically can't work at all. Ditto with the idea that we actually don't know how exactly to define males and female. I get the scientific argument there, but since it really only matters in the cases of <1% of the population, we are demanding that a very small tail wag a very large dog. The alternative is to build the policy around that <1%, and I think the burden of proof would be on Sarah to show why that would be better.

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      1. Icarus213

        And one more thought: I feel like Sarah is confusing intersex individuals (those born with unusual chromosomes, like XXY or XXXY) with transgender individuals. Most trans people have no scientifically observable differences from cis people - it's a psychological profile rather than a physiological profile (software, not hardware). So these kinds of arguments really muddy the waters by saying that the law can't really make firm distinctions.

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