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Old 28th September 2021, 02:06 PM   #1
Hercules56
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Transgender pronouns and the 1st Amendment

Question: do penalties for refusing to use "appropriate pronouns" for transgender men & women, on publicly funded school grounds, violate the 1st Amendment?

One could argue that it does. One could argue, that they have the right to believe that someone born a male at birth stays a male till death, reconstructive surgery & hormone treatment be damned. And firing or suspending, or even fining someone for calling a man "he/sir/Mr" when they self-identify as a female, violates the US Constitution.

How do we encourage such people to respect the identity wishes of others? I don't know. This question is about penalties.
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Old 28th September 2021, 02:29 PM   #2
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In before, "the Constitution is not a suicide pact."
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Old 28th September 2021, 02:37 PM   #3
Hercules56
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Originally Posted by theprestige View Post
In before, "the Constitution is not a suicide pact."
Courts have made it clear that the Constitution protects speech considered to be rude, obnoxious, even offensive.

Schools and other public institutions of course have the right to establish a code of conduct which bans harassment, but this is a very nuanced issue. Some people do truly believe that a man is a man and a woman is a woman, regardless of surgery or hormones. These views are based on science and not the Bible or another fantasy book.
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Old 28th September 2021, 02:45 PM   #4
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Why is respecting the identity wishes of an individual or not a issue that someone should be penalized for? Said individual moved into gray areas of society and should expect gray area answers and treatment. Between a rural fundie church in Georgia and New York theater district I would expect totally different results.

You can't legislate courtesy or respect. Ask again how to encourage others to respect the wishes.
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Old 28th September 2021, 02:52 PM   #5
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It's just language. We could try to enforce the removal of all gender from English and refer to everyone and everything as "it". Then nobody is offended and the 1st amendment is not an issue. Better?

Who cares. You want to be pronouned "he", "she" or "they', doesn't stop you being a person.
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Old 28th September 2021, 03:02 PM   #6
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Originally Posted by 8enotto View Post
Why is respecting the identity wishes of an individual or not a issue that someone should be penalized for? Said individual moved into gray areas of society and should expect gray area answers and treatment. Between a rural fundie church in Georgia and New York theater district I would expect totally different results.

You can't legislate courtesy or respect. Ask again how to encourage others to respect the wishes.
Hypothetical response: what if someone wants to be considered to be a cat, or a dog, or a gerbil? Should we respect their wishes? What if I want to be known as "The King of Mars"? Should you be required to respect my identity wishes under pain of fines or losing your job?
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Old 28th September 2021, 03:11 PM   #7
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Originally Posted by Hercules56 View Post
Question: do penalties for refusing to use "appropriate pronouns" for transgender men & women, on publicly funded school grounds, violate the 1st Amendment?
The short answer is we'll find out someday, when someone eventually makes a federal case out of misgendering. My best guess is that the case will be grounded in existing carveouts to free speech created to allow regulation of harassment.

If you're interested in the ongoing "conflict between the freedom of speech and workplace harassment law" this website may well come in handy:
https://www2.law.ucla.edu/volokh/harass/
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Old 28th September 2021, 03:21 PM   #8
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Originally Posted by Hercules56 View Post
Hypothetical response: what if someone wants to be considered to be a cat, or a dog, or a gerbil? Should we respect their wishes? What if I want to be known as "The King of Mars"? Should you be required to respect my identity wishes under pain of fines or losing your job?
What if some jerk-off serial failure of a real-estate inheritance squanderer wants to call himself President of the USA?
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Old 28th September 2021, 03:31 PM   #9
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Originally Posted by Norman Alexander View Post
What if some jerk-off serial failure of a real-estate inheritance squanderer wants to call himself President of the USA? ; )
That's actually an epithet with a well-defined and formal process that must be followed, to qualify for the title. Which he followed. It actually makes more sense to call him "president" than it does to call a man a woman.
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Old 28th September 2021, 03:32 PM   #10
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What if one truly believes that black people are inferior? I mean, there used to be a lot of "scientific" support for the concept.

What if one only wants to refer to women by the names of the their husbands "i.e. Mrs. John Smith."? I mean, there used to be a lot of "scientific" support for the concept that women are inferior to men.

I put gender pronouns in the same boat. If we can rule that it's unacceptable (against school/business conduct codes) to address a grown black man as "Boy" then we can also rule on how to address transgender people.

And before you say it - yes, biology is biology. As a society, we have now partially de-linked gender pronouns from genetic sex, and that's fine. Referring to a person as "He" or "Him" when the person has ovaries and two X chromosomes is not wrong, it does not deny the existence of the ovaries and chromosomes - not anymore.

Don't conflate societal gender norms with biology. They don't match up perfectly anymore, and that's fine.
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Old 28th September 2021, 03:32 PM   #11
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Originally Posted by Hercules56 View Post
Hypothetical response: what if someone wants to be considered to be a cat, or a dog, or a gerbil? Should we respect their wishes? What if I want to be known as "The King of Mars"? Should you be required to respect my identity wishes under pain of fines or losing your job?
Your right to think of yourself however you want ends where my right to think of you however I want begins.
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Old 28th September 2021, 03:35 PM   #12
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Originally Posted by Hercules56 View Post
Hypothetical response: what if someone wants to be considered to be a cat, or a dog, or a gerbil? Should we respect their wishes? What if I want to be known as "The King of Mars"? Should you be required to respect my identity wishes under pain of fines or losing your job?
Society. A group pf people. You're a member of one, whether you like it or not.

Right now, society does not support such concepts, but it does support certain concepts delinking gender and genetic sex while not denying the existence of either. It's not a science thing. It's a group of people thing.
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Old 28th September 2021, 03:36 PM   #13
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Let's elide the issue of transgenderism and imagine that a public high school teacher has an effeminate young man in his class. He frequently refers to this student with feminine pronouns. "Ooh, a 95! Look at her! You go, girl." The student makes it clear that he doesn't appreciate this.

Is there a problem here? Would it be reasonable for the school to warn or discipline this teacher? Would/should the first amendment prevent the school from doing so?
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Old 28th September 2021, 03:42 PM   #14
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Are there legal penalties now for calling a woman a man on school grounds? If not then the answer is no.

Can a school enforce their own such rules? Don't know.

Would legal penalties be a violation of the 1st Amendment?

Yes.
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Old 28th September 2021, 03:55 PM   #15
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I was going to ask if it is acceptable, on 1st amendment grounds for a teacher to use offensive words "Hey ass holes!" to address the class, or use ethnic slurs or homophobic slurs, and say, "What?!?!? It's the first amendment, bro?!?" when called out on it.

But this is a better example...

Originally Posted by mumblethrax View Post
Let's elide the issue of transgenderism and imagine that a public high school teacher has an effeminate young man in his class. He frequently refers to this student with feminine pronouns. "Ooh, a 95! Look at her! You go, girl." The student makes it clear that he doesn't appreciate this.

Is there a problem here? Would it be reasonable for the school to warn or discipline this teacher? Would/should the first amendment prevent the school from doing so?
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Old 28th September 2021, 04:10 PM   #16
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Originally Posted by mumblethrax View Post
Let's elide the issue of transgenderism and imagine that a public high school teacher has an effeminate young man in his class. He frequently refers to this student with feminine pronouns. "Ooh, a 95! Look at her! You go, girl." The student makes it clear that he doesn't appreciate this.

Is there a problem here? Would it be reasonable for the school to warn or discipline this teacher? Would/should the first amendment prevent the school from doing so?
In your hypothetical, are we to assume that the teacher is aware that the boy is a boy?

Either way, if the teacher is white he should probably be fired anyway for the blatant cultural appropriation of using "you go, girl!".
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Old 28th September 2021, 04:21 PM   #17
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Originally Posted by Hercules56 View Post
Hypothetical response: what if someone wants to be considered to be a cat, or a dog, or a gerbil? Should we respect their wishes? What if I want to be known as "The King of Mars"? Should you be required to respect my identity wishes under pain of fines or losing your job?
Ist amendment and US law don't apply where I am, and I grew up in a rough and tumble area.
Anyone even remotely not macho enough got one called effeminate things, or far worse.
That wasn't a nice place. But it was survivable.

Where I am is yet a bit rough and tumble, there a laws against violence towards women and the rainbow range of people, but as yet no Orwellian hate crimes by mere thought.

I like it this way.

Anyone wants to be King of Mars they grabbed top spot in the loon files and I will avoid them at any reasonable effort. I don't like dealing with loons.
Society where I am at mirrors my ideas so this is the right place.

A place with obvious loons hanging out everywhere or the fundie church in a one horse town somewhere would not be my place.
Each has to find thier place.
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Old 28th September 2021, 04:22 PM   #18
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Originally Posted by Distracted1 View Post
In your hypothetical, are we to assume that the teacher is aware that the boy is a boy?
Yes. As suggested in the hypothetical, the boy has corrected him on this point.
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Old 28th September 2021, 04:38 PM   #19
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For me it's important to remember that these things aren't a system of formal logic. There's no arithmetic that neatly sums up to the "right answer" by applying certain rules in a rote fashion.

We stipulate that the right to free speech still leaves room for public institutions to establish rules of decorum and impose penalties when those rules are broken. But what counts as "decorum" ultimately boils down to the taboos of the day.

It is taboo for a teacher to verbally abuse or insult a student. Thus the right to free speech does not apply to teachers in a classroom setting.

But it is not (yet) taboo to call a man a man. Nor is it (yet) taboo to dissent from any self-applied label. If I wish to call myself an attack helicopter, nobody else at school - whether student or teacher - is obligated to play along. Nor would it make sense for the school to impose a rule requiring them to play along. Their right to free expression - to believe I am not an attack helicopter, and say so when the question comes up - trumps my demand that they express my beliefs when in my presence.

But it is almost impossible to discuss these questions meaningfully and civilly with hardcore "skeptics", due to a widespread allergy to informal rule systems, personal beliefs, and nuanced problems of social interaction.
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Old 28th September 2021, 04:44 PM   #20
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Originally Posted by mumblethrax View Post
Yes. As suggested in the hypothetical, the boy has corrected him on this point.
Clearly, the teacher should be corrected. Mocking the appearance of a child is outside his purview. If the boy was, instead, actually a girl- the teachers use of "her" was entirely appropriate- while the use of "girl" (a direct form of address) in that circumstance is also unwarranted.
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Old 28th September 2021, 04:54 PM   #21
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Quote:
Clearly, the teacher should be corrected.
The teacher should be fired..
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Old 28th September 2021, 05:05 PM   #22
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Originally Posted by Skeptical Greg View Post
The teacher should be fired..
Teacher's unions would surely disagree.
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Old 28th September 2021, 05:28 PM   #23
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Language doesn't really care about biology. Misgendering will be as offensive as society decides it is.
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Old 28th September 2021, 05:46 PM   #24
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Originally Posted by Olmstead View Post
Language doesn't really care about biology. Misgendering will be as offensive as society decides it is.
I am not offended by misgendering at all. When someone refers to Kaitlyn Jenner as "she" or "her" it does not offend me in the least. And if someone wishes to refer to me as "she" or "her", besides getting a good laugh and confusing the situation in the interest of newspeak, I would be fine with it.
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Old 28th September 2021, 06:04 PM   #25
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Originally Posted by angrysoba View Post
I was going to ask if it is acceptable, on 1st amendment grounds for a teacher to use offensive words "Hey ass holes!" to address the class, or use ethnic slurs or homophobic slurs, and say, "What?!?!? It's the first amendment, bro?!?" when called out on it.

But this is a better example...
No, calling students "ass holes" would clearly be offensive and rude.

You're assuming that someone might call a transgender woman "sir" simply and only to be rude & offensive. No chance it might be due to the belief that gender is not as fluid as current Western society wants us to believe it is. For humans.
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Old 28th September 2021, 06:05 PM   #26
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Originally Posted by Hercules56 View Post
Question: do penalties for refusing to use "appropriate pronouns" for transgender men & women, on publicly funded school grounds, violate the 1st Amendment?
Answer: The Supreme Court, who would be the ones to give a definitive ruling on constitutionality, never, ever, under any circumstances, decides a hypothetical case. They only work with real, and specific, instances where a specific person has had interaction with a specific law.


We, here, have a little bit more leeway, but even here I think I would need more information about something that is actually happening in order to offer an opinion.
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Old 28th September 2021, 06:15 PM   #27
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Originally Posted by Distracted1 View Post
I am not offended by misgendering at all. When someone refers to Kaitlyn Jenner as "she" or "her" it does not offend me in the least. And if someone wishes to refer to me as "she" or "her", besides getting a good laugh and confusing the situation in the interest of newspeak, I would be fine with it.
Funny.

Language is a peculiar field in which ideas actually do trump reality. It's arbitrary that he refers to males and she refers to females. Offensiveness will also be arbitrary.
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Old 28th September 2021, 06:26 PM   #28
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Legal guidance for Texas public schools:
Quote:
In contrast to permanent school records, however, teachers and other school district employees often informally address students by, and have non-permanent school records that reflect, preferred names or nicknames that are not a student’s legal first name. A school district should apply this practice equally with transgender students. For example, the transgender student’s preferred first name and gender should be used in speaking with the student and for class rosters, identification badges, awards, and any other similar purpose. OCR and DOJ’s 2021 guidance cites a failure to address a transgender student by the student’s chosen name and pronouns as an example of sex-based discrimination within the agencies’ enforcement authority under Title IX.
(Emphasis mine)
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Old 28th September 2021, 06:38 PM   #29
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Originally Posted by Distracted1 View Post
Clearly, the teacher should be corrected. Mocking the appearance of a child is outside his purview. If the boy was, instead, actually a girl- the teachers use of "her" was entirely appropriate- while the use of "girl" (a direct form of address) in that circumstance is also unwarranted.
So then it's permissible in at least some circumstances to take disciplinary action against a teacher for refusing to use the appropriate pronouns.

The only issue, then, is whether to school has remit to decide what the appropriate pronouns are.

Doesn't seem like a particularly difficult issue to me, particularly in the parts of the country where gender identity is a protected class.
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Old 28th September 2021, 06:52 PM   #30
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Who let "That Thread" out?
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Old 28th September 2021, 06:52 PM   #31
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Originally Posted by mumblethrax View Post
The only issue, then, is whether to school has remit to decide what the appropriate pronouns are.
I don't think the individual schools have that much leeway, since the federal guidance basically requires preferred pronouns. (See post #40)
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Old 28th September 2021, 06:56 PM   #32
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Old 28th September 2021, 06:57 PM   #33
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Originally Posted by Distracted1 View Post
I am not offended by misgendering at all. When someone refers to Kaitlyn Jenner as "she" or "her" it does not offend me in the least. And if someone wishes to refer to me as "she" or "her", besides getting a good laugh and confusing the situation in the interest of newspeak, I would be fine with it.
Well here's the thing. It's not about you. Not everybody thinks like you do.
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Old 28th September 2021, 06:59 PM   #34
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Originally Posted by Olmstead View Post
Language doesn't really care about biology.
This.

Furthermore, whether a woman has ovaries or not is neither the point nor your business.
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Old 28th September 2021, 07:04 PM   #35
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Originally Posted by Thermal View Post
Who let "That Thread" out?
It's a slippery devil.
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Old 28th September 2021, 07:06 PM   #36
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Originally Posted by d4m10n View Post
Legal guidance for Texas public schools:
And that view seems to be informed by Bostock v. Clayton CountyWP.
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Old 28th September 2021, 08:40 PM   #37
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The way I see it.....

How would the subject even come up? I think the only way it could would be for a student, or teacher, to express a desire to be referred to as a particular pronoun, and then a different student or teacher refuse to use the preferred pronoun, and then the student who refused to honor a pronoun request faces disciplinary action, or the teacher gets fired or perhaps some lesser employment discipline. Having had discipline applied, the student or teacher then sues the school district or college saying his rights were infringed upon by imposing discipline.

Schools, including government schools, have long had the ability to make policies regarding how students address teachers, and how teachers address students. Free speech has never been held as a right to do whatever the heck you want, allowing any and all words flow out of your mouth. It protects freedom of expression. Therefore, it would protect, or at least ought to protect, a teacher or professor who expresses an opionion about transgender rights in general, or pronoun preferences in particular. However, it would not protect someone specifically addressing a given inddiviual. In a school or an employment settings, you can't go around calling people whatever you want to call them, and the employer has a right to tell you what you ought to call people. So, the first amendment's free speech clause shouldn't protect anyone.

So, the only thing left would be the first amendment's freedom of religion clause.

A person might object to the pronoun policy on the grounds that addressing someone of a particular biological sex by a pronoun that would suggest a different sex is against their religious beliefs. When such a complaint is made, generally schools are required to provide reasonable accomodation for those beliefs. The question is, would they? Would the courts decide that allowing someone to address Caitlyn as Bruce, or possibly just referring to Caitlyn as "he", be an exercise of that person's religious beliefs, and that making the allowance was a reasonable accomodation of the student or teacher's religious beliefs?

I don't know what the answer is. I kind of doubt it, though I think they would hold that the teacher's insistence on calling Caitlyn "he" was not an exercise of his religious beliefs, but rather an statement of his religious opinions. Those are entirely different things. In other words, it was more like preaching than anything else. It is one thing to say that your religion requires you to wear a hat. It's something else to say your religion requires you to ignore the beliefs of other people. I think, in the end, most judges, including most Supreme Court Justices, would rule that the school or college has a right to insist on certain forms of address, and that neither the rights of free speech nor the rights of free practice of religion are being infringed by insisting on those forms of address.

Summary: I think if the school adopts a policy, both students and teachers will be required to adhere to that policy if they want to stay students and teachers, and the courts will not come to their rescue.

However, to an earlier point, this is all hypothetical. Until we have a real case in a real court, it's hard to judge what would happen.
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Old 28th September 2021, 09:07 PM   #38
mumblethrax
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Originally Posted by Meadmaker View Post
However, to an earlier point, this is all hypothetical. Until we have a real case in a real court, it's hard to judge what would happen.
I don't think it's that hard. The courts have found that discrimination against employees on the basis of gender identity necessarily involves sex discrimination, and thus violates Title VII. It's hard to imagine how it would be otherwise under Title IX, given that the language is similar.

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Old 28th September 2021, 09:42 PM   #39
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Originally Posted by mumblethrax View Post
I don't think it's that hard. The courts have found that discrimination against employees on the basis of gender identity necessarily involved sex discrimination, and thus violates Title VII. It's hard to imagine how it would be otherwise under Title IX, given that the language is similar.
Title VII and Title IX are statutory. The US Constitution supercedes statory law.
If someone claims that their freedom of religion is being violated by being forced to address a biological female as "he", it really doesn't matter what Title VII or Title IX say. If the court accepts that this is indeed a violation of his religious freedom, that would trump any statute.


I kind of doubt that the Supreme Court would make such a ruling, but stranger things have happened.
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Old 28th September 2021, 09:49 PM   #40
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Originally Posted by Meadmaker View Post
Title VII and Title IX are statutory. The US Constitution supercedes statory law.
And? The courts have found neither to be unconstitutional, so this is kind of irrelevant.

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I kind of doubt that the Supreme Court would make such a ruling, but stranger things have happened.
Like I said, they already have made such a ruling.
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