Another Lost, One Of Many To Come

Sad, sad, sad… another anti-LGBT judge has been appointed to Court of Appeals for the Fifth Circuit.

5th Circuit's James Ho Agrees With Himself in Denying Broad LGBTQ Rights
ALM Media
February 8, 2019

When Fifth Circuit Judge James Ho wrote the majority opinion affirming a district judge’s dismissal of a transgender employment discrimination claim this week, he also wrote a second separate opinion concurring with himself.

Ho’s unusual concurrence—three times as long as his majority opinion—included a lengthy discourse on maintaining separate bathrooms for the sexes, even though transgender bathroom issues did not figure into the case at hand. He also included a quick English lesson on what the word “sex” really means.

The employment lawsuit against Phillips 66 Co. was filed by Nicole Wittmer, who identifies herself as a transgender woman. A judge in the Southern District of Texas tossed the case after finding Wittmer didn’t present sufficient evidence to support her discrimination claim. Phillips 66 contended it rescinded a job offer after a background check revealed “misrepresentations” and “discrepancies” involving a previous job that were unrelated to her transgender status.

But because Wittmer’s suit contended Title VII of the 1964 Civil Rights Act precluded discrimination against individuals based on their sexual orientation—a contention the trial court endorsed while ruling on other grounds—Ho made clear in his concurrence that he believes Chief Judge Lee Rosenthal of the Southern District of Texas is wrong.

“He also included a quick English lesson on what the word “sex” really means” well this is what the Supreme Court ruled sex means,

Federal courts ask: What is the meaning of 'sex'?
Existing prohibitions against discrimination 'because of sex,' already provide a civil rights umbrella wide enough to cover discrimination based on sexual orientation and transgender identity, some judges are beginning to say.
Christian Science Monitor
By Harry Bruinius
March 27, 2018

A number of federal courts have begun to ask a question that has become more and more subtle over the past few years: What is the meaning of ‘sex’?
[…]
By the end of the 1980s, the Supreme Court found that discrimination based on “gender stereotypes” was also a violation of civil rights laws – in this case a woman who was passed up for promotion because she did not act feminine enough.

“She argued: that’s discrimination against me on the basis of my sex,” says Steve Sanders, a professor at Indiana University’s Maurer School of Law in Bloomington. “They’re not discriminating against me as a woman per se, but they’re discriminating against me because I failed to demonstrate certain stereotypes of what it means to be a woman, and the Supreme Court accepted that.

You got that Judge Ho.

The Supreme Court said sex discrimination includes sex stereotyping!

And the nation’s high court broadened the definition even further in 1998, ruling unanimously that Title VII’s workplace protections covered sexual harassment between members of the same sex – a key decision, says Ms. Eisenberg [managing partner at the Miami office of Cozen O’Connor], citing a passage that in many ways redefined her job.
[…]
Even so, Eisenberg points out that given the ways in which the high court has redefined the meaning of sex in past precedents, today simple claims of “gender stereotyping” already covers most claims of discrimination based on sexual orientation or gender identity.

But the judges appointed for life by Trump and the Republicans put their prejudices ahead of the Constitution and Supreme Court precedents.