A Close Argument Against Bostock

[zippy2006]

Introduction

Bostock v. Clayton County is chock-full of terrible reasoning up and down the opinion, but I want to venture an argument that accepts all of Gorsuch's flawed premises and still opposes his conclusion. That is, I want to offer an argument for the invalidity of his reasoning. (This thread is meant for those who are already familiar with the case. If you aren't I will probably lose you along the way.)

The Court determined in a 6-3 decision that discriminating against an individual on the basis of their homosexuality or transgenderism is discriminating against that individual on the basis of their sex, and therefore such discrimination is prohibited under Title VII of the Civil Rights Acts of 1964. To quote Gorsuch, who authored the majority opinion, "...it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex" (9).


But-For Causation

At the heart of Gorsuch's reasoning is what he calls, "but-for causation." As I understand it, a but-for cause is a necessary condition of the effect. So if an employer says, "I would have hired you but-for the fact that you are a woman," then but-for causation on the basis of sex has occurred, and this means that discrimination is present in the hiring process. If the necessary condition of female-sex-applicant were not present, the effect of not-hiring would not have obtained. Further, although identifying but-for causes can be difficult Gorsuch assures us that it is do-able if we only change one variable at a time. "In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause" (5). Gorsuch clearly thinks that but-for reasoning supports his conclusion, "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex" (2).


Competing But-For Analyses

But does but-for reasoning support his conclusion? I don't think so. I think Gorsuch is changing two variables, not one. First consider a (biologically male) transwoman who is fired because of her transgenderism. Is sex a but-for cause in this case? Consider two possibilities, Gorsuch's analysis and a competing analysis:

A1. By changing the one variable of sex we move from a biological male who calls themselves a woman to a biological female who calls herself a woman. Since the change results in a different employment outcome sex is a but-for cause.

A2. By changing the one variable of sex we move from a transgendered male to a transgendered female. Since the change does not result in a different employment outcome sex is not a but-for cause.​

Which is the right analysis? Which analysis changed only one variable? Consider the parallel homosexual case:

B1. By changing the one variable of sex we move from a male who is attracted to men to a female who is attracted to men. Since the change results in a different employment outcome sex is a but-for cause.

B2. By changing the one variable of sex we move from a male who is homosexual to a female who is homosexual. Since the change does not result in a different employment outcome sex is not a but-for cause.​

First note that there is no possible way to change only one variable. When the variable of sex is changed, other variables related to sex change, and at that point what is at stake is different theories of how the sex-variable relates to those other variables. Clearly the question here is whether we should hold the sex-identification variable constant or whether we should hold the transgender-identification variable constant, because when you change the variable of sex you can't hold both of these other variables constant. In the homosexual case the question is whether we should hold the sex-attraction variable constant or whether we should hold the sexual orientation variable constant, because when you change the variable of sex you can't hold both of those other variables constant.


Conclusion

Well, which of the two variables has precedence? Presumably the plaintiffs favor A1 & B1 while the defendants favor A2 & B2. I would argue that A2 & B2 offer the proper analysis, not A1 & B1. This is because the intent of the defendants is focused on sexual orientation and transgenderism, not on sexual attraction and gender identification. For example, they are interested in firing people because they are homosexual, not because they are attracted to men. Thus in our but-for analysis we should hold the homosexual variable constant, not the attracted-to-men variable. Intent of the acting party guides us in accepting one of the variables among the mutually exclusive pair of variables. A1 & B1 assume that the defendants were more interested in mere gender identification and mere sexual attraction rather than transgenderism and homosexuality, which is absurd. Gorsuch not only fails to limit himself to changing one variable at a time, but the second variable that he changes is the precise thing the defendant claimed was the initial problem! Even on Gorsuch's own reasoning, sex is not a but-for cause of discrimination.

As an addendum, even if A2 & B2 are not thought to have clear precedence, if A1 & B1 cannot be shown to have precedence then the analysis is indeterminate and we cannot claim with any certainty that sex is a but-for cause in this case. What we have here are competing theories of how sex relates to sexual orientation and gender identification, and the courts are simply not competent to enshrine particular gender theories into law.


TL;DR

Gorsuch: You know you can't fire people based on their sex according to Title VII.
Defendant: We didn't fire him because he's a man, we fired him because he's homosexual.
Gorsuch: If he were a heterosexual woman you clearly wouldn't have fired him, so it's obvious to me that you fired him because he's a man.
Defendant: ..Are you being serious..?

Gorsuch: You know you can't fire people based on their sex according to Title VII.
Defendant: We didn't fire her because she's a female, we fired her because she thinks she's a man.
Gorsuch: If she were a cisgender male you clearly wouldn't have fired her, so it's obvious to me that you fired her because she's a woman.
Defendant: I don't have any problem with her sex, I have a problem with her gender. She's the one who has a problem with her sex. ​

 

[zippy2006]

- reserved -

 

[Moral Orel]

TL;DR

Gorsuch: You know you can't fire people based on their sex according to Title VII.
Defendant: We didn't fire him because he's a man, we fired him because he's homosexual.
Gorsuch: If he were a heterosexual woman you clearly wouldn't have fired him, so it's obvious to me that you fired him because he's a man.
Defendant: ..Are you being serious..?

Gorsuch: You know you can't fire people based on their sex according to Title VII.
Defendant: We didn't fire her because she's a female, we fired her because she thinks she's a man.
Gorsuch: If she were a cisgender male you clearly wouldn't have fired her, so it's obvious to me that you fired her because she's a woman.
Defendant: I don't have any problem with her sex, I have a problem with her gender. She's the one who has a problem with her sex.

Defendant: Only our male employees are allowed to be attracted to women. Our female employees are not allowed to be attracted to women.

Defendant: Only our male employees are allowed to think they're men. Our female employees are not allowed to think they're men.

Sounds like different rules based on sex to me. Stating that you fired someone for being gay or trans means that these rules I listed are effectively being enforced.

Gorsuch: Do you allow your employees to be attracted to women?
Defendant: That depends on if they're male or female.
Gorsuch: Do you allow your employees to think they're men?
Defendant: That depends on if they're male or female.

 

[zippy2006]

Defendant: Only our male employees are allowed to be attracted to women. Our female employees are not allowed to be attracted to women.

Defendant: Only our male employees are allowed to think they're men. Our female employees are not allowed to think they're men.

Sounds like different rules based on sex to me. Stating that you fired someone for being gay or trans means that these rules I listed are effectively being enforced.

(Your focus on the tl;dr has caused us to move off the close argument that regards but-for single variables, but that's alright I suppose)


Defendant: Both our male and female employees are allowed to be attracted to members of the opposite sex.

Defendant: Both our male and female employees are allowed identify with their own sex.


Adjudicate.


Defendant: Only our female employees are allowed pregnancy leave. Our male employees are not allowed pregnancy leave. (But-for violation)

Defendant: Only our female lifeguards are required to wear a swimsuit top. Our male employees are not required to do so. (But-for violation)

 

[Moral Orel]

(Your focus on the tl;dr has caused us to move off the close argument that regards but-for single variables, but that's alright I suppose)


Defendant: Both our male and female employees are allowed to be attracted to members of the opposite sex.

Defendant: Both our male and female employees are allowed identify with their own sex.


Adjudicate.

You're going to follow this with examples of things to compare it to that you think I'll find reasonable that are but-for violations, so I'm going to start with an example of something that you'll find unreasonable but follows your phrasing.

Defendant: Both our black and white employees are allowed to be attracted to members of the same race.

Have you not effectively made separate rules for black and white employees?

I.E. Our black employees are allowed to be attracted to blacks. Our white employees are not allowed to be attracted to blacks.

Defendant: I didn't fire that employee for being white, I fired him for having jungle fever.

Defendant: Only our female employees are allowed pregnancy leave. Our male employees are not allowed pregnancy leave. (But-for violation)

Why make that rule? Male employees don't get pregnant, so they don't happen to cash in on it.

Defendant: Only our female lifeguards are required to wear a swimsuit top. Our male employees are not required to do so. (But-for violation)

This absolutely is a but-for violation. Obviously an employer doesn't have to allow their employees to bare their chests, but they need to cover up those dastardly male nipples as well to be in compliance.

 

[zippy2006]

You're going to follow this with examples of things to compare it to that you think I'll find reasonable that are but-for violations, so I'm going to start with an example of something that you'll find unreasonable but follows your phrasing.

Defendant: Both our black and white employees are allowed to be attracted to members of the same race.

Have you not effectively made separate rules for black and white employees?

I.E. Our black employees are allowed to be attracted to blacks. Our white employees are not allowed to be attracted to blacks.

Defendant: I didn't fire that employee for being white, I fired him for having jungle fever.

Why think that racial attraction and sex attraction are parallel realities?

I'm not convinced that a single rule which results in different outcomes for different kinds of things is multiple rules. For example, "Everyone is at least allowed to bathe themselves." Did I just make one rule or 7.8 billion rules? Now I do grant that it treats men and women differently, but not unequally. In the Civil Rights era the slogan was also "separate but equal." The analogy fails for two reasons: 1) Blacks were not treated equally, and 2) Blacks simply are not different in the ways that segregationists claimed they were. In the case of men and women there really are reality-based differences.

Why make that rule? Male employees don't get pregnant, so they don't happen to cash in on it.

The rule doesn't matter; pregnancy leave is still a but-for violation. Gorsuch's sex-swap would also swap pregnancy status in precisely the same way that his sex-swap swaps sexual orientation status. To echo Gorsuch's reasoning, "You can't favor pregnancy leave without favoring sex discrimination."

This absolutely is a but-for violation. Obviously an employer doesn't have to allow their employees to bare their chests, but they need to cover up those dastardly male nipples as well to be in compliance.

Haha, okay.

 

[Moral Orel]

Why think that racial attraction and sex attraction are parallel realities?

Because neither of them are any business of the employer. I can't fathom how either of them could affect someone's job performance in any legal industry either.

I'm not convinced that a single rule which results in different outcomes for different kinds of things is multiple rules. For example, "Everyone is at least allowed to bathe themselves." Did I just make one rule or 7.8 billion rules?

??? Are you saying that "Everyone is at least allowed to bathe themselves" results in 7.8 billion different rules? How? Show me the first 4. I mean...

Jack is at least allowed to bathe.
Suzy is at least allowed to bathe.
Pat is at least allowed to bathe.
Terry is at least allowed to bathe.

I don't see how that compares.

Now I do grant that it treats men and women differently, but not unequally. In the Civil Rights era the slogan was also "separate but equal." The analogy fails for two reasons: 1) Blacks were not treated equally, and 2) Blacks simply are not different in the ways that segregationists claimed they were. In the case of men and women there really are reality-based differences.

The racial rule I made up does treat blacks and whites equally. They just aren't allowed to have jungle-fever; what's wrong with an employer firing employees for that?

The rule doesn't matter; pregnancy leave is still a but-for violation. Gorsuch's sex-swap would also swap pregnancy status in precisely the same way that his sex-swap swaps sexual orientation status. To echo Gorsuch's reasoning, "You can't favor pregnancy leave without favoring sex discrimination."

Only a crazy person: Have you ever allowed your male employees to be absent from work for being pregnant?!
Defendant: They never asked.
Only a crazy person: Well have you ever allowed your female employees to be absent from work to have a prostate exam?!
Defendant: Again, they never asked.

Everyone is allowed to be absent for medical reasons. That some medical reasons only apply to females and some medical reasons only apply to males isn't on the employer unless they were to needlessly state some rule in a sexist way.

 

[zippy2006]

First I just want to acknowledge that you have made some very strong arguments in this thread. Of course this also means you are wrong in your assessment that unsound arguments cannot be reasonable.

Because neither of them are any business of the employer. I can't fathom how either of them could affect someone's job performance in any legal industry either.

I actually tend to agree. The problem with Bostock isn't in the rights it granted, but in its claim that those rights derive from sex. That is, the problem is that it refuses to acknowledge the existence of discrimination on the basis of sexual orientation and claims that all such discrimination is really sex discrimination. I think the legislature should go ahead and write the law that the Court is already pretending exists, and it should be a law about discrimination on the basis of sexual orientation, not sex.

My OP was about whether Gorsuch's conclusion is supported by but-for causation. I realize we haven't really been talking about that.

??? Are you saying that "Everyone is at least allowed to bathe themselves" results in 7.8 billion different rules? How? Show me the first 4. I mean...

Jack is at least allowed to bathe.
Suzy is at least allowed to bathe.
Pat is at least allowed to bathe.
Terry is at least allowed to bathe.

I don't see how that compares.

Haha, perhaps I managed to give a bad example with poor wording. What I meant was that, at the very least, every person is allowed to bathe their own bodies.

Jack is at least allowed to bathe Jack's body.
Suzy is at least allowed to bathe Suzy's body.
Pat is at least allowed to bathe Pat's body.
Terry is at least allowed to bathe Terry's body.

Since it creates unique requirements for each person, are there as many rules as there are people?

The racial rule I made up does treat blacks and whites equally. They just aren't allowed to have jungle-fever; what's wrong with an employer firing employees for that?

(2) still applies to your rule, though. My point is just that we have to be careful since this analogy isn't universally true:

Men : Women :: Blacks : Whites​

Only a crazy person: Have you ever allowed your male employees to be absent from work for being pregnant?!
Defendant: They never asked.
Only a crazy person: Well have you ever allowed your female employees to be absent from work to have a prostate exam?!
Defendant: Again, they never asked.

Everyone is allowed to be absent for medical reasons. That some medical reasons only apply to females and some medical reasons only apply to males isn't on the employer unless they were to needlessly state some rule in a sexist way.

But you're not addressing the fact that it is still but-for causation on the basis of sex. Now you're the one saying they should be treated differently but equally. On Gorsuch's reasoning, pregnancy leave is illegal. It is discrimination "based on sex." If the woman were a man you would not give him leave. But-for causation exists. Case closed.

(See, now we're addressing his premise of but-for causation itself, which is clearly a garbage premise. My OP was trying to retain that poor premise.)

 

[Moral Orel]

I actually tend to agree. The problem with Bostock isn't in the rights it granted, but in its claim that those rights derive from sex. That is, the problem is that it refuses to acknowledge the existence of discrimination on the basis of sexual orientation and claims that all such discrimination is really sex discrimination. I think the legislature should go ahead and write the law that the Court is already pretending exists, and it should be a law about discrimination on the basis of sexual orientation, not sex.

I think we should scrap all of it and start over with laws about what you can discriminate for: tardiness, insubordination, poor work performance, etc. It's going to be a much shorter list of things that are the business of the employer than the list of things that people want to fire employees for that aren't the business of the employer.

Haha, perhaps I managed to give a bad example with poor wording. What I meant was that, at the very least, every person is allowed to bathe their own bodies.

Jack is at least allowed to bathe Jack's body.
Suzy is at least allowed to bathe Suzy's body.
Pat is at least allowed to bathe Pat's body.
Terry is at least allowed to bathe Terry's body.

Since it creates unique requirements for each person, are there as many rules as there are people?

But "allowed" is not a requirement. You haven't discriminated against anyone based on anything because there isn't anyone who isn't allowed to bathe Jack's body. Did you perhaps mean, "A person is only allowed to bathe themselves"? Because then yes, you have effectively made a rule that Suzy is not allowed to bathe Jack because she is Suzy and she is not Jack.

(2) still applies to your rule, though. My point is just that we have to be careful since this analogy isn't universally true:

Men : Women :: Blacks : Whites

Only if you can point to some difference between men and women that is pertinent will (2) matter. Since you tend to agree that at least romantic attraction isn't any business of the employer, I don't see how you could present a pertinent difference.

But you're not addressing the fact that it is still but-for causation on the basis of sex. Now you're the one saying they should be treated differently but equally. On Gorsuch's reasoning, pregnancy leave is illegal. It is discrimination "based on sex." If the woman were a man you would not give him leave. But-for causation exists. Case closed.

(See, now we're addressing his premise of but-for causation itself, which is clearly a garbage premise. My OP was trying to retain that poor premise.)

"If the woman were a man I would not give him leave". Sure I would. If a man had a baby in his belly that needed to be removed I would give him leave. Arnold Schwarzenegger deserved pregnancy leave.

 

[hedrick]

There's some history here. Loving v. Virginia found laws outlawing racially mixed marriages unconstitutional. The argument was identical. The defendants said exactly what you are saying: they treated blacks and whites identically. There was no discrimination based on race, just based on how the races were combined in the marriage. Similar arguments would be used if anyone tried to outlaw religiously mixed marriages. Similar arguments were used in legalizing gay marriage. Maybe this is all wrong, but to decide this case any other way would have been inconsistent with past Supreme Court decisions.

 

[zippy2006]

I think we should scrap all of it and start over with laws about what you can discriminate for: tardiness, insubordination, poor work performance, etc. It's going to be a much shorter list of things that are the business of the employer than the list of things that people want to fire employees for that aren't the business of the employer.

Ah, the old whitelist strategy ..er, "allowlist." Interesting idea, but I don't think laws really work like that, and it's too top-down for my liking.

But "allowed" is not a requirement. You haven't discriminated against anyone based on anything because there isn't anyone who isn't allowed to bathe Jack's body. Did you perhaps mean, "A person is only allowed to bathe themselves"? Because then yes, you have effectively made a rule that Suzy is not allowed to bathe Jack because she is Suzy and she is not Jack.

My rule is still discriminatory. You are providing some people with a positive allowance while not providing others with it. If I say all the Boomers get a box of Good 'N Plenty but say nothing about anyone else, I have still discriminated. I have bestowed a privilege on a particular group.

Only if you can point to some difference between men and women that is pertinent will (2) matter. Since you tend to agree that at least romantic attraction isn't any business of the employer, I don't see how you could present a pertinent difference.

With, with respect to employment they are probably on equal terms.

"If the woman were a man I would not give him leave". Sure I would. If a man had a baby in his belly that needed to be removed I would give him leave. Arnold Schwarzenegger deserved pregnancy leave.

I don't think so. If men could get pregnant you would be right, but they can't, so pregnancy leave is, in fact, sex discrimination. It doesn't matter that changing the sex changes the pregnancy status, just as it didn't matter to Gorsuch that changing the sex changed the sexual orientation status. I don't think anyone holds the view that pregnancy leave is not sex discrimination. It's something we give women but not men. It's just a legitimate form of sex discrimination, because--get this!--men and women are actually different in some ways.

"No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees" (11). Discrimination based on sex "plays a role" "as a means" to determining whether one is allowed to request pregnancy leave.

 

[zippy2006]

There's some history here. Loving v. Virginia found laws outlawing racially mixed marriages unconstitutional. The argument was identical. The defendants said exactly what you are saying: they treated blacks and whites identically. There was no discrimination based on race, just based on how the races were combined in the marriage. Similar arguments would be used if anyone tried to outlaw religiously mixed marriages. Similar arguments were used in legalizing gay marriage. Maybe this is all wrong, but to decide this case any other way would have been inconsistent with past Supreme Court decisions.

Actually the closer precedent is the one cited in Bostock: United States v. Virginia, where the Court held that race and sex are not parallel in the way you claim, quoting Ballard v. United States, "The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both."

There probably is precedent I am missing, but I don't think it is Loving.

 

[hedrick]

You're right. The summaries I read made Bostock and Loving seems closer. The arguments given by the defendants were the same. In both cases they said it was not discrimination because they treated men and women the same, or black and white. It was only the combination that was the issue.

I just read both decisions.

In Bostock the court used the "but for" analysis, saying that if you switched the sex of the person, it changed the action, so it violated the statutes.

In Loving the court seems to have banned the use of the distinction between black and white. Not the same reasoning. In Bostock the court didn't reject the distinction between male and female, though it banned most uses of the distinction in employment decisions.

 

[zippy2006]

You're right. The summaries I read made Bostock and Loving seems closer. The arguments given by the defendants were the same. In both cases they said it was not discrimination because they treated men and women the same, or black and white. It was only the combination that was the issue.

I just read both decisions.

In Bostock the court used the "but for" analysis, saying that if you switched the sex of the person, it changed the action, so it violated the statutes.

In Loving the court seems to have banned the use of the distinction between black and white. Not the same reasoning. In Bostock the court didn't reject the distinction between male and female, though it banned most uses of the distinction in employment decisions.

Yeah, I think that's right. One of the more interesting arguments in Bostock that keys in on a difference between race and sex (or gender) is as follows:

So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. (9)​

 

[Moral Orel]

My rule is still discriminatory. You are providing some people with a positive allowance while not providing others with it. If I say all the Boomers get a box of Good 'N Plenty but say nothing about anyone else, I have still discriminated. I have bestowed a privilege on a particular group.

Now you're giving something away. You aren't giving away baths, and you aren't telling anyone who they can't bathe. It isn't analogous.

With, with respect to employment they are probably on equal terms.

Then you haven't provided any pertinent differences, so my analogy stands. Is firing someone for having jungle-fever illegal or not?

I don't think so. If men could get pregnant you would be right, but they can't, so pregnancy leave is, in fact, sex discrimination. It doesn't matter that changing the sex changes the pregnancy status, just as it didn't matter to Gorsuch that changing the sex changed the sexual orientation status. I don't think anyone holds the view that pregnancy leave is not sex discrimination. It's something we give women but not men. It's just a legitimate form of sex discrimination, because--get this!--men and women are actually different in some ways.

But it isn't the rule that says men can't have it, it's biology. The discrimination isn't imposed by the employer, it's imposed by nature. There are some medical reasons that only apply to women, there are some medical reasons that only apply to men, neither of which the employer determines. All employees are allowed to leave work for medical reasons.

 

[hedrick]

The amount of time out to have the baby isn’t that long. Typically however pregnancy leave includes time after birth to be with the child. That time can be, and is, used by both sexes. I’ve had a male employee take it.

 

[Moral Orel]

The amount of time out to have the baby isn’t that long. Typically however pregnancy leave includes time after birth to be with the child. That time can be, and is, used by both sexes. I’ve had a male employee take it.

Come to think of it, I'm pretty sure the father gets out of work for the delivery too. Bedside FMLA and all that.

 

[zippy2006]

Now you're giving something away. You aren't giving away baths, and you aren't telling anyone who they can't bathe. It isn't analogous.

Allowing someone to bathe their own body is something you "give them."

But it isn't the rule that says men can't have it, it's biology. The discrimination isn't imposed by the employer, it's imposed by nature. There are some medical reasons that only apply to women, there are some medical reasons that only apply to men, neither of which the employer determines. All employees are allowed to leave work for medical reasons.

True, but it still amounts to discrimination the basis of (sexual) biology.

Heck, one could also make the argument that biology is creating the problems with homosexuals and transgenders rather than the employer's rule. In all of these cases the employer's discrimination is based on biological distinctions, and in all of these cases but-for reasoning applies. That's why but-for reasoning is an invalid approach; it's too sweeping a criterion.

 

[Moral Orel]

Allowing someone to bathe their own body is something you "give them."

You can't give someone something they already have. I give you permission to respond to this post. See? It's meaningless.

True, but it still amounts to discrimination the basis of (sexual) biology.

I don't think we actually do that though. I think Hedrick and I covered it and I'm pretty sure fathers get the same amount of time off.

Heck, one could also make the argument that biology is creating the problems with homosexuals and transgenders rather than the employer's rule. In all of these cases the employer's discrimination is based on biological distinctions, and in all of these cases but-for reasoning applies. That's why but-for reasoning is an invalid approach; it's too sweeping a criterion.

I don't see it. Feel free to try and argue that it's biology's fault that employers want to poke their nose into the personal relationships of their employees though.

How come you skipped the middle part of my post? Interracial relationship discrimination is too perfect of an analogy to homosexual relationship discrimination isn't it?

 

[zippy2006]

You can't give someone something they already have. I give you permission to respond to this post. See? It's meaningless.

Meh, that's a very different objection. Again, perhaps my example was poor, but a state could easily legislate that allowance whether or not it makes any difference and whether or not you personally think there is an inherent right to bathe yourself. My original point still holds.

(The allowance actually makes more sense in light of your "whitelist" proposal. Instead of adding to the long and convoluted list of disallowances, let's just begin with stating what is allowed. But I only meant it as a throwaway, uncontroversial example, perhaps made after reading some articles on autocratic China )

I don't think we actually do that though. I think Hedrick and I covered it and I'm pretty sure fathers get the same amount of time off.

The principle is the point. In practice different companies treat this issue differently, and not every company that grants pregnancy leave grants identical leave to the father. My point is that granting unequal pregnancy leave to the two sexes is prohibited by Gorsuch's but-for analysis and yet is perfectly reasonable.

I don't see it. Feel free to try and argue that it's biology's fault that employers want to poke their nose into the personal relationships of their employees though.

I don't much feel like pursuing this line, but isn't that basically what Gorsuch said? That discrimination on the basis of orientation or identification is discrimination on the basis of sex/biology?

How come you skipped the middle part of my post? Interracial relationship discrimination is too perfect of an analogy to homosexual relationship discrimination isn't it?

I think we covered it. The analogy applies in this case, but not universally. As I pointed out to Hedrick, this is probably the reason why the Court didn't use your preferred analogy.