Indiscreet Function

@homotopic

Jew. Mostly leftist. Queer. Most people refer to me with the pronouns "he/him" and I acquiesce in this.

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Bluesky

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Indiscreet Function@homotopic· Jul 13

The footnote arguably suggests the narrower reading but it's not clear

Indiscreet Function@homotopic· Jul 13

How do you read this? The reporting says the Court voids the settlement. But on my read it's much narrower--they can't use the settlement in an official proceeding, and maybe (it's ambiguous) only to the extent they characterize it as a settlement "reached in this matter," the specific filed case

Indiscreet Function@homotopic· Jul 2

In my first skeet I should probably have excerpted the beginning of the passage, where the employers contest precisely what Gorsuch says they did not contest: they argued that it was lawful to "discharge" someone because of sex as long as it did not meet a free-standing sense of "discriminate"

Indiscreet Function@homotopic· Jul 2

(I cut off the Bostock excerpt because it's so long. It's 590 U.S. at 657-59.) The part of Bostock Gorsuch's concurrence relies on does leave open questions about bathrooms etc. but it *supplies* a definition of discrimination (which, e.g., non-injurious differences in treatment may not meet)

Indiscreet Function@homotopic· Jul 2

On the left: Gorsuch in 2026 (in BPJ), reading Bostock to focus solely on the meaning of "because of" because nobody disagreed about "discrimination." On the right: Gorsuch in 2020 (in Bostock), opining at length on the meaning of "discriminate" (because it was, in fact, actively contested)

Indiscreet Function@homotopic· Jul 1

All right, one more on BPJ. Justice Jackson raises an important question about sex stereotyping discrimination against trans women: if you penalize a trans woman for violating stereotypes associated with women, is that sex discrimination under the majority's theory?

The prohibition against stereotyping is difficult to explain fully by reference to sex assigned at birth. A sex stereotype often will but need not have anything to do with an
individual’s sex assigned at birth. A transgender woman
penalized for being perceived as aggressive has experienced
discrimination “on the basis of sex” just as much as a cisgender woman has, no matter that the transgender
woman’s behavior matches expectations of her sex assigned
at birth. Either way, the institution has imposed its gender-based expectations upon her. And either way, the institution may have violated Title IX.

Indiscreet Function@homotopic· Jul 1

One of the striking things in the opinion is that Kavanaugh breaks his quotes of the text of the amendment to omit "intercollegiate," presumably because BPJ is in high school. Everyone just goes along with this presumably because they don't want to answer a broader Title IX question

Indiscreet Function@homotopic· Jul 1

As far as (b), the injury component, Bostock does not address it, beyond holding that firing qualifies. But the Court recently spoke to the issue in Muldrow v. City of St. Louis. You don't need "substantial" harm--just some harm.

Indiscreet Function@homotopic· Jul 1

The issue is that (a) is most of the ballgame--which is why Bostock is so important. The employers wanted to fold into (a) a substantive theory of what kind of sex differentiation counts that would exclude comparable burdens on men and women as a group. Bostock could not be clearer in rejecting this

Indiscreet Function@homotopic· Jul 1

What Bostock says is that its analysis is about (a). I've excerpted the relevant language below. It doesn't address injury, and it doesn't address statutory exceptions. If Gorsuch is saying no more than that, what he says is correct and fully consistent with Bostock.

What are these consequences anyway? The employers
worry that our decision will sweep beyond Title VII to other
federal or state laws that prohibit sex discrimination. And,
under Title VII itself, they say sex-segregated bathrooms,
locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are
before us; we have not had the benefit of adversarial testing
about the meaning of their terms, and we do not prejudge
any such question today. Under Title VII, too, we do not
purport to address bathrooms, locker rooms, or anything
else of the kind. The only question before us is whether an
employer who fires someone simply for being homosexual
or transgender has discharged or otherwise discriminated
against that individual “because of such individual’s sex.”
As used in Title VII, the term “‘discriminate against’” refers
to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S. F. R., 548 U. S., at
59. Firing employees because of a statutorily protected
trait surely counts. Whether other policies and practices
might or might not qualify as unlawful discrimination or
find justifications under other provisions of Title VII are
questions for future cases, not these.

Indiscreet Function@homotopic· Jun 30

I do not think the Supreme Court's drive-by holding that "sex" in Title IX means "biological sex" (i.e., natal sex/sex assigned at birth) is correct

The term “sex” in the 1972 Title IX statute, the
1974 Javits Amendment, and the 1975 Title IX regulations
cannot plausibly be interpreted to refer to anything other
than biological sex. The ordinary meaning of the term “sex”
at the time of enactment in the early 1970s was biological
sex and not gender identity, particularly in the sports
context. See, e.g., Frontiero v. Richardson, 411 U. S. 677,
686 (1973) (plurality opinion) (“sex” is “an immutable
characteristic”).

Indiscreet Function@homotopic· Jun 30

This was not true in Skrmetti, decided only a year ago. I don't agree with this passage from the Skrmetti majority and I don't love all of its language choices but it is vastly more respectful than the way the Court talks in BPJ

When properly understood from the perspective of the indications that puberty blockers and hormones treat, SB1
clearly does not classify on the basis of sex. Both puberty
blockers and hormones can be used to treat certain overlapping indications (such as gender dysphoria), and each can be
used to treat a range of other conditions. Id., at 6–7.
These combinations of drugs and indications give rise to various medical treatments. When, for example, a transgender
boy (whose biological sex is female) takes puberty blockers
to treat his gender incongruence, he receives a different
medical treatment than a boy whose biological sex is male
who takes puberty blockers to treat his precocious puberty.2
SB1, in turn, restricts which of these medical treatments are
available to minors: Under SB1, a healthcare provider may
administer puberty blockers or hormones to any minor to
treat a congenital defect, precocious puberty, disease, or
physical injury, Tenn. Code Ann. § 68–33–103(b)(1)(A); a
healthcare provider may not administer puberty blockers or
hormones to any minor to treat gender dysphoria, gender
identity disorder, or gender incongruence, see §§ 68–33–
102(1), 68–33–103(a)(1), (b)(2). The application of that prohibition does not turn on sex.

Indiscreet Function@homotopic· Jun 30

4. I am concerned about Justice Gorsuch's reading of Bostock in his concurrence. Here is the core of what he says. Gorsuch basically says: Bostock is about what treatment based on sex means. The applicability of Bostock depends on whether treatment based on sex is discriminatory, and here it isn't

Indiscreet Function@homotopic· Jun 29

Justice Barrett is completely right here

Indiscreet Function@homotopic· Jun 29

This is laughably inadequate

Indiscreet Function@homotopic· Jun 29

Seems like the Supreme Court is full speed ahead in crafting a special "parent worried about kid possibly transitioning" exception to normal standing rules--a venture begun in Mirabelli. They granted the below case this morning

Indiscreet Function@homotopic· Jun 25

Here I find Barrett substantially more convincing than the majority opinion--it's not that this kind of law need literally involve poaching to be valid, but it needs to be targeted at something more concrete

So the problem with Hawaii’s default rule is not that it
targets a regulatory problem besides poaching. It is that
the rule does not target any particular abuse of firearms at
all. Rather than identifying a specific threat to public peace
and safety, Hawaii admits that it enacted the rule because
many of its citizens oppose the public carry of guns. In
other words, Hawaii is responding to the general danger associated with the presence of firearms, not to any specific,
heightened risk of their misuse. See 2023 Haw. Sess. Laws
114 (invoking general “risks to public health, safety, and
welfare associated with firearms and gun violence”). And
rather than confining the rule to specific places where firearms are likely to be misused, Hawaii applies it to all private property, even property held open to the public. From
the hardware store, to the gas station, to the fast-food restaurant—individuals cannot carry weapons for self-defense
unless they obtain express consent.6

Indiscreet Function@homotopic· Jun 25

But part of the problem is that the definition of "conversion practice" is way overbroad! Helping your closeted friend realize and accept that he's gay is a "conversion practice" under this def ("causing the individual . . . to believe that they have . . . a particular sexual orientation")

(2) “Conversion practice” means (subject to subsection (3)) any conduct carried out by a person towards an individual with the intention of—

(a) causing the individual—
(i) to have or not to have,
(ii) to believe that they have or do not have,
a sexual orientation or a particular sexual orientation; or

(b) causing the individual—
(i) to have or not to have,
(ii) to believe that they have or do not have,
a transgender identity or a particular transgender identity.

Indiscreet Function@homotopic· Jun 25

The idea of criminalizing only "abusive conversion practice" (no "therapy," my error) suggests that there is such a thing as non-abusive conversion practice and indeed the bill seems to want to draw such a distinction. Its guidance on how to draw it is not so helpful

(4) Subsections (5) and (6) apply for determining whether conduct involved in a conversion practice carried out on an individual amounts to an abuse of the individual (and so is an “abusive conversion practice”).

(5) The question whether conduct amounts to an abuse of the individual is a question of fact to be determined by reference to all the circumstances of the case, including in particular the nature of the conduct.

(6) In assessing the nature of the conduct, consideration is to be given (among other things) to the question whether it involves any of the following—

(a) words or behaviour of a sexual nature;
(b) violent or threatening words or behaviour;
(c) controlling or coercive words or behaviour;
(d) use of economic pressure;
(e) use of psychological or emotional pressure.

Indiscreet Function@homotopic· Jun 23

Wait does DOJ think discriminating on the basis of sexual orientation is unconstitutional? www.politico.com/news/2026/06...

Indiscreet Function@homotopic· Jun 23

Not sure how much it matters but the escrow proposal seems plainly to violate MOU para 11 ("fully available for use," "fully usable for payment to any ultimate beneficiary designated by the Central Bank of the Islamic Republic of Iran")

11 — The United States of America undertakes to make fully available for use the frozen or restricted funds and assets of the Islamic Republic of Iran upon the implementation of this MOU. The United States of America and the Islamic Republic of Iran will mutually agree on the procedures related to the release of these funds during negotiations. Such funds, whether retained in the original account or transferred, shall be made fully usable for payment to any ultimate beneficiary designated by the Central Bank of the Islamic Republic of Iran. The United States of America undertakes to issue all necessary licenses and authorizations accordingly.

Indiscreet Function@homotopic· Jun 23

Here is what Mirabelli actually says about this. There is a difference between concealment/shutting out and mere nondisclosure. The injunction upheld in Mirabelli barred interference with teacher disclosure but did not itself mandate disclosure (and "symptoms" is very broad obviously)

The same is true for the subclass of parents who object to
those policies on due process grounds. Under longestablished precedent, parents—not the State—have primary authority with respect to “the upbringing and education of children.” Pierce v. Society of Sisters, 268 U. S. 510,
534–535 (1925); accord, Meyer v. Nebraska, 262 U. S. 390,
399–400 (1923). The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health. Parham v.
J. R., 442 U. S. 584, 602 (1979). Gender dysphoria is a condition that has an important bearing on a child's mental health,
but when a child exhibits symptoms of gender dysphoria at
school, California's policies conceal that information from
parents and facilitate a degree of gender transitioning during
school hours. These policies likely violate parents' rights to
direct the upbringing and education of their children

Indiscreet Function@homotopic· Jun 23

The troubling part is the reasoning in the standing section. Mirabelli is short and not especially clear but I do not think it should be read so broadly as to mean that schools have a mandatory constitutional duty to disclose "symptoms" of gender dysphoria manifested by students at school

Reconsidering the standing issue in light of Mirabelli, we conclude that Movants
have sufficiently established standing to support preliminary injunctive relief.
Mirabelli rejected, as likely to fail, the contention that the certified class of parents
included “uninjured” persons “who lacked Article III standing,” 607 U.S. at 495,
and its reasons for finding sufficient standing are applicable here.
As the Court explained, the substantive due process right of parents “to
direct the upbringing and education of their children” “includes the right not to be
shut out of participation in decisions regarding their children’s mental health,”
which includes the right to information known to the school about whether “a child
exhibits symptoms of gender dysphoria at school.” Mirabelli, 607 U.S. at 497
(emphasis added). As framed by the Court, the plaintiff parents thus have an
affirmative constitutional right to be provided with any such information. Id.
Without requiring any individualized showing as to whether a particular parent’s
child was likely to exhibit gender dysphoria, the Court held that “parents who
object to the challenged policies” withholding such information “very likely have
standing because they are objects of the challenged exclusion policies.” Id. at 498
(emphasis added) (citing Diamond Alternative, 606 U.S. at 114).

Indiscreet Function@homotopic· Jun 19

Namely

Indiscreet Function@homotopic· Jun 17

This point in particular is very important

Finally, the District echoes the ruling by the district court
that “Title IX did not unambiguously prohibit same-sex acts of
sports hazing or speech that challenges masculinity.” Because Title
IX was enacted under Congress’s Spending Clause power, any conduct it prohibits must be prohibited “unambiguously.” Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). We have held
that Congress can satisfy the requirements of the Spending Clause
by creating “a clear and actionable prohibition of discrimination,”
even if the “manner of that discrimination can vary widely.” Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004). Because Title
IX’s prohibition on sex discrimination is “clear and actionable,” an
express provision prohibiting same-sex sports harassment is not required. The Supreme Court has applied Title IX to student-on-student harassment and retaliation, even though neither application is
obvious from the face of the statute. See Davis, 526 U.S. at 633; Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182 (2005). We have no
doubt that in the light of the “clear prohibition of discrimination in
Title IX,” federal funding recipients had “adequate notice” that “severe student-on-student harassment was actionable.” Benning, 391
F.3d at 1306.

Indiscreet Function@homotopic· May 31

I can't speak for who Matt Yglesias knows but I do not think it's true that people angry about the Nazi tattoo are really just angry about his Israel stance www.slowboring.com/p/seventeen-...

1. I don’t find misconduct of the sort revealed in these stories to be disqualifying of Platner as a candidate — try to imagine this coming out about a politician whose work on policy you really admire, and I think you’ll see what I mean.

2. I feel this even more strongly about the tattoo. The people I know who are most angry about the tattoo also have a strong policy disagreement with Platner. They don’t believe he’s a secret devotee of National Socialism; they believe his criticisms of Israel are unforgivably bad.

Indiscreet Function@homotopic· May 28

Judge Rivera was right and/but I think my reaction to this case in 2022 is still correct

Tweets:

Reading this case is weird for me as a hardline animal liberationist. The majority is terrified of too much justice: what happens when people bring habeas petitions on behalf of other nonhuman animals????

The dissents are right that other cases are distinguishable but they concede too much. Yes, you could operate a habeas jurisprudence protecting only a handful of nonhuman animals with especially impressive cognitive abilities and especially weak justifications for confinement

But cognitive capacity is no basis for the legal subordination of any being and weak justifications for confinement abound: most nonhuman animals caged by humans could be released into less restrictive settings without harm to their own welfare or that of others

I know it is not yet politically viable but the proper response to an argument that habeas rights for nonhumans would threaten the use of nonhumans in farming is: yes, it would, and soon may it come. There is no right to cage, torture, and kill another sentient being.

The true politics of liberation, grounded in the obligation of universal love, does not rest until every cage is empty.

Indiscreet Function@homotopic· May 28

RIP Happy. (Quote is from Judge Rivera's dissent in the NY Court of Appeals decision rejecting the challenge to Happy's captivity.) www.nytimes.com/2026/05/28/n...

Captivity is anathema to Happy because of her cognitive abilities and behavioral
modalities—because she is an autonomous being. Confinement at the Zoo is harmful, not
because it violates any particular regulation or statute relating to the care of elephants, but
because an autonomous creature such as Happy suffers harm by the mere fact that her
bodily liberty has been severely—and unjustifiably—curtailed. Happy’s confinement by
human beings has never been intended to benefit her but serves only to entertain and satisfy
human curiosity, regardless of the loss of freedom to Happy. She is held in an environment
that is unnatural to her and that does not allow her to live her life as she was meant to: as a
self-determinative, autonomous elephant in the wild. Her captivity is inherently unjust and
inhumane. It is an affront to a civilized society, and every day she remains a captive—a
spectacle for humans—we, too, are diminished.

Indiscreet Function@homotopic· May 6

This seems like the critical two paragraphs here. You always have to be careful about this kind of study where you infer a causal effect from a residual after controls--who knows what else may have changed over the time period in question.

In a report released this year, the M.T.A. said that highway traffic had mostly decreased during the same time period covered by the Health Department study, including in the South Bronx.

In New York City, traffic accounts for just 14 percent of fine particulate matter; most of the pollution comes from buildings and other sectors. “The South Bronx is a densely populated area,” Dr. Hilpert said. “Very often you see schools and residential high-rises located just next to highways, so even a modest increase in air pollution can have significant public health impacts.”

Indiscreet Function@homotopic· Apr 24

There are some side-issues but my takeaway from this interview and related Bluesky discourse is that the main disagreement left between Baude and Vladeck is between "the Court has clearly been partisan" and "there are too many variables to say definitively" www.nytimes.com/2026/04/24/o...