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wddaughter's profile
W. Burlette Carter
W. Burlette Carter
W. Burlette Carter
@wddaughter

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W. Burlette Carter

@wddaughter

Prof. Emerita of Law; Legal Historian; Lawyer; SCOTUS Bar; JD Harvard; Independent; ADOS; WD Carter's Daughter; see also @ProfWBCarter. Yes, I said that.

Silver Spring, MD
Joined August 2009

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    W. Burlette Carter‏ @wddaughter 15 Jun 2020

    The U.S. Supreme Court has ruled (6-3) that refusing to hire people based on gender id or sexual orientation violates Title VII. Title VII bans discrimination "because of sex." This is a great outcome for LGBTQ persons and the rest of us. Opinion is here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf …

    8:34 AM - 15 Jun 2020
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    • 261 Likes
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    12 replies 76 retweets 261 likes
      1. New conversation
      2. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        It is a limited opinion which is good. The court does not address intimate spaces saying it is not raised in this case. They don't address religious group rights. (Religious employers opted out of this argument.) They don't address whether sex & gender identity are the same.

        3 replies 14 retweets 94 likes
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      3. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        They say they are not addressing other statutes. There is another case involving Title IX (intimate spaces in educational institutions) that is coming up. They are hinting that this case does not control that one. That statute has different language.

        2 replies 12 retweets 82 likes
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      4. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        The court says it assumes, for this case, that sex is biological sex. However, they say that when one discriminates based on sexual orientation, one discriminates in part based on biological sex even if there is an additional type of discrimination.

        2 replies 18 retweets 96 likes
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      5. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        Title VII also states that not even PARTIAL reliance on sex is allowed unless sex is a bona fide occupational qualification (BFOQ). So here they say there was partial reliance on sex. The dissent rejects the view that the outcome is based solely on the text.

        1 reply 5 retweets 51 likes
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      6. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        And again, because the plaintiffs in the case involving a transgender person refused to rely on their religious claims, they have lost under this analysis. But the court says other religious groups are free to press the claims.

        1 reply 4 retweets 49 likes
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      7. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        I filed two briefs in this case. I asked the court to rely upon a decision, the Oncale case, to find that discrimination based on the presentation of Gender is banned under Title VII without overturning distinctions between biological sex and gender identity.

        1 reply 5 retweets 58 likes
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      8. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        The court took the option of relying on its reading of the text buttressed by Oncale and other cases.

        1 reply 0 retweets 33 likes
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      9. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        Advocates also argued that sex is a "stereotype" and that courts should rely on gender identity. The majority did not rely on stereotyping theory interestingly enough.

        1 reply 8 retweets 67 likes
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      10. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        I also felt the Zarda case was distinguishable because it involved allegations of sexual harassment. The court does not address this. I made arguments the parties did not make. It seems the court is holding the parties to their arguments.

        1 reply 0 retweets 27 likes
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      11. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        The court attempts to say that its textual approach is consistent with past approaches. I frankly disagree. I think it may be a new textual approach.

        1 reply 0 retweets 32 likes
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      12. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        The court conceded that words might have had a different meaning in an earlier time but they said the parties did not rely upon this argument. They also suggested that what an earlier generation intended by the words does not matter.That will get some folks riled up.

        1 reply 0 retweets 40 likes
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      13. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        But I am not unhappy about the outcome. I argued for the same outcome but on a very different logic. And I argued religious exemptions in one cae. They did not consider because the party having the potential exemption did not rely upon it.

        1 reply 1 retweet 31 likes
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      14. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        I'll tweet more about this in the future.

        10 replies 0 retweets 33 likes
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      15. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        So some are asking what the larger implications of this case are. I'll talk about that and then come back to the case itself if I have time. M said it was adhering closely to the statutory language. In fact, many of these discrimination statutes have similar language.

        1 reply 0 retweets 15 likes
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      16. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        And remember, we are talking about national or "federal" statutes as we call them. There are state statutes too; they cover the territory within a state. But those states cannot reach outside of their territories. So the federal statutes are key for a national rule.

        1 reply 0 retweets 12 likes
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      17. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        Now, it is very common for courts to interpret statutes with similar language in the same way.

        1 reply 0 retweets 9 likes
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      18. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        One candidate for a similar outcome is the Fair Housing Act which prohibits discrimination in access to housing (mortgages, apartments) "because of sex." Expect that one to be interpreted to forbid discrimination against trans people and on sexual orientation. A good thing.

        2 replies 2 retweets 26 likes
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      19. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        Now there is a biology/gender id issue in the Fair Housing Act. It involves shelters and whether male bodied persons must be housed with females. That will be a more difficult issue. The court will have to confront the significance of biological in that context.

        3 replies 1 retweet 35 likes
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      20. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        The Obama Administration issued "guidance" that shelters had to house people by gender identity. Trump's folks just announced they are reversing that by rule, allowing shelters to decide. They already reversed the Obama rules governing the Bureau of Prisons.

        2 replies 4 retweets 26 likes
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      21. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        There are other such statutes. The one governing sports, Title IX, is an exception of sorts because its history has a wealth of information that sex separation IS allowed. It was originally designed to allow women more opportunities in sports when the male bodied dominated.

        1 reply 6 retweets 38 likes
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      22. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        That statute will be the hardest for those who want to merge sex and gender to overcome. Similarly, bathroom issues in the workplace are probably not addressed here. The court says it is focusing on hiring.

        1 reply 2 retweets 23 likes
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      23. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        These cases are statutory cases. But there are other cases that raise constitutional issues. That is a different kettle of fish/different arguments. There is a sex/gender case coming up before the Court soon, Gavin Grimm's case, that also raises constitutional questions.

        1 reply 4 retweets 21 likes
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      24. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        So this case will have broader implications for sure. No doubt, some judges will decide the case means they can dismiss biology even though the M said it is not doing that. But my guess is that the court is headed toward narrowing the biology exception--but keeping it.

        3 replies 3 retweets 16 likes
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      25. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        The Grimm case was argued about a week ago in the intermediate appellate court. Expect them to rule within a month. Then there will be a petition for certiorari. The Court will grant it. And then 90 days to get the record together. Then briefing. A decision June next year.

        1 reply 1 retweet 14 likes
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      26. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        A hidden issue in Grimm is whether he still has standing. He alleges he was denied access to a bathroom matching his gender identity while a high school student. Now he has graduated. Hmmmm .....

        1 reply 1 retweet 18 likes
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      27. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        In the meantime we are in the midst of a presidential election. November 3. Stay tuned.

        1 reply 0 retweets 16 likes
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      28. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        Someone asked whether Bostock will receive compensation. To understand the answer you must understand the claims.

        2 replies 0 retweets 6 likes
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      29. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        Several people have asked how this affects the Soule case involving whether trans athletes have a right to compete with biological females. (Yes, I said that term.)

        1 reply 1 retweet 21 likes
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      30. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        Soules is in a lower court. The case that might affect Soules is Grimm which should come up for decision in the term starting in October.

        1 reply 2 retweets 12 likes
        Show this thread
      31. W. Burlette Carter‏ @wddaughter 15 Jun 2020

        The relevance of this case is two fold. First, the majority here directs the courts to carefully look at the language of the statute. (But some argue they did not do that here.) They claim to be doing that.

        1 reply 0 retweets 7 likes
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      32. Show replies

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