Actual good news time - SCOTUS rules that employment protection exists for LGBT people, 6-3. Gorsuch and Roberts defected, Gorsuch actually wrote the ruling, and I'm pretty confident now that those two are trying to build a center bloc on the court.
From what I'm reading about
Gorsuch's opinion, if that ends up being the final case law, then there's still a logical loophole.
If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
[...]
If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
(Emphasis mine)
If I understand correctly, you can still ban homosexuals as long as that includes
both homosexual men and homosexual women. You can't just fire gays exclusively, or lesbians exclusively, since now you are discriminating based on sex.
In fact, isn't Gorsuch's argument a false equivalence? Since he's comparing a homosexual man and a heterosexual woman. In other words, he's making the obvious
and correct conclusion that banning an androsexual man but not an androsexual woman is sexual discrimination, but that's not the problem at hand i.e. that banning homosexuals is sexual discrimination.
Or at least, it's not what the media is making it out to be. At best, the solution is incomplete.
Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.
Isn't this the same argument as well? In fact, he--intentionally or not--says it himself:
Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent.
In other words, if you fire a male X and a female X, you're in the clear. But if you only fire a male X but not a female X, then you're in deep shit.
So why the mix-up of the traits? Did he botch the logic or is he playing a different game here?