Congress wasn’t thinking about lesbian, gay, bisexual or transgender workers when it included “sex” in the list of characteristics covered by Title VII of the Civil Rights Act of 1964, which barred job discrimination because of race, color, religion or national origin. The racist male octogenarian who proposed adding the word “sex” to the law certainly wasn’t thinking about them. Equal rights for those individuals was a fantasy then; same-sex intimacy was still illegal in many states, as was being transgender (mainly in the form of degrading laws prohibiting “cross-dressing”).
Now, 55 years later, the Supreme Court will rule on whether it considers Title VII’s ban on discrimination “because of sex” also to bar discrimination because of sexual orientation and gender identity, it announced on Monday. In the past, most federal courts of appeals have rejected that proposition. But a good look at Title VII’s history — and a recent accelerated shift in the tide of precedent — makes it clear: Because Title VII was “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,” as the Supreme Court stated in 1978, the law’s protections must be read to include lesbian, gay, bisexual and transgender people.
Seven years ago, the U.S. Equal Employment Opportunity Commission, the agency that enforces the workplace discrimination law, made history when it concluded that gender identity is covered by the statute; within a few years, it reached the same conclusion as to sexual orientation. Other federal agencies, like the Department of Health and Human Services, have followed the EEOC’s lead. The courts have been slower to act, but negative precedent is eroding: To date, five of the 12 federal appeals courts (and dozens of federal district courts) have ruled that gender identity discrimination is unlawful sex discrimination, while two appellate courts in just the past two years have joined the “yes” column as to sexual orientation.
This evolving split in legal authority has led the justices to weigh in. Two of the cases to be heard by the Supreme Court concern gay men who allege they were fired because of their sexual orientation. Donald Zarda was a skydiving instructor on Long Island; Gerald Bostock was a child welfare services coordinator in a suburb of Atlanta. (Zarda has since died, but his family continues to wage his legal battle. The ACLU, my employer, represents his survivors.) Both men’s cases were dismissed by lower courts relying on older cases that concluded sexual orientation wasn’t a protected characteristic under Title VII. In Bostock’s case, that conclusion was upheld by the Eleventh Circuit appeals court, which covers Georgia, Alabama and Florida, and Bostock has asked the Supreme Court to reverse it. Zarda’s case came out the opposite way: The Second Circuit, whose jurisdiction includes New York, Connecticut and Vermont, ruled last February that its prior precedent was wrong and found that sexual orientation fell squarely within Title VII’s protections. In so doing, the court relied on another favorable decision, this one issued in 2017 by the Seventh Circuit, covering Illinois, Indiana and Wisconsin. The Supreme Court consolidated the cases so that they will be heard at the same oral argument.
The third case the Supreme Court will hear concerns Aimee Stephens, whom the ACLU also represents. Stephens had worked for six years at a funeral home outside Detroit when she disclosed to her boss and co-workers that she is transgender. Two weeks later, she was fired. Her employer does not deny that the reason he terminated her was because she is transgender; he merely argued that Title VII isn’t meant to protect people like her. Last year, the Sixth Circuit appeals court ruled in Stephens’ favor, reinforcing existing federal legal protection for transgender workers within its jurisdiction of Kentucky, Michigan, Ohio and Tennessee.
When the cases come before the Supreme Court next term, Zarda’s, Bostock’s and Stephens’s opponents can be counted on to invoke history by contending that the Congress that enacted Title VII in 1964 never intended for its ban on discrimination “because of sex” to also preclude discrimination against someone because they are lesbian, gay, bisexual or transgender. The only way to protect LGBTQ workers from discrimination, they will tell us, is to amend the statute.
But this contention ignores Title VII’s history — and courts’ interpretation of the statute in the more than five decades since its enactment. The law’s original target, women’s second-class status at work versus men, was rooted in stereotypes holding that “woman” (and “man”) is a fixed identity with certain inherent abilities, preferences, behaviors and roles — on the job, at home and in society. In interpreting what counts as employment discrimination “because of sex,” the Supreme Court has serially disapproved rules regarding such stereotypes, in a wide range of contexts. For instance, in a 1971 case — the first Title VII suit decided by the Supreme Court — it found discriminatory an employer’s refusal to hire mothers of small children while hiring fathers with children the same age, a policy premised on the stereotype that mothers made less reliable employees. Six years later, the court invalidated an Alabama regulation requiring prison guards to be a certain height and weight, a threshold premised on the assumption that “bigger is better” when it comes to law enforcement jobs, which resulted in women’s disproportionate exclusion from the applicant pool. The Supreme Court also rejected an employer’s policy of making women contribute more to their pensions than men because, on average, women live longer. Treating individual women as if they all share the same characteristics of the group, said the court, was antithetical to Title VII’s purpose.
In the context of LGBTQ discrimination specifically, there are two especially significant strands of precedent. The first arises from the case of Ann Hopkins, who in the 1980s sued the Big Eight accounting firm Price Waterhouse after she was denied partnership, despite generating more business than any of the other 87 (male) candidates. She was told that the denial had nothing to do with her skills, and everything to do with who she was. According to partner reviews, she was “macho,” needed “a course at charm school” and was “overly aggressive.” When she asked a mentor what she could do differently to increase her chances for promotion, he advised that she “walk more femininely, talk more femininely, dress more femininely, wear make-up, have [her] hair styled, and wear jewelry.”
The Supreme Court ruled in Hopkins’s favor, finding that denying her partnership because she (in the partners’ eyes) did not look or act like a woman should look or act was discrimination “because of sex.” It is no less discriminatory to punish a gay, lesbian, bisexual or transgender employee for not conforming to the stereotype that men should have intimate relationships only with women and vice versa, or that “maleness” and “femaleness” are fixed at birth and should exist only in the binary. These conclusions do not go beyond the principle announced in Hopkins’s case; they are synonymous with it.
The other pertinent precedent stems from the Supreme Court’s landmark conclusion that sexual harassment is discrimination “because of sex.” The term “sexual harassment” didn’t even exist in 1964 — that came a decade later, in 1975 — and it would be laughable to argue that Congress meant to outlaw the range of behaviors that, as “Mad Men” has taught us, were considered simply the natural by-product of men and women working together. But in 1986, the Supreme Court recognized that such conduct subjected women to inferior “terms, conditions, or privileges” of employment just as much as an unequal paycheck or a promotion denial. Drawing on cases that had found that racial and national origin harassment violated Title VII by poisoning the work environments of black and brown people simply because of who they were, the court ruled that men’s harassment of women would not have occurred but for their simply being women. Therefore, it occurred “because of sex.”
Just a few years later, the Supreme Court confirmed that harassment need not be overtly sexual to violate the statute. It found a hostile work environment in the case of a Tennessee woman whose boss had, in addition to leering at her and propositioning her, called her a “dumb-ass woman” and told her that a man should hold her job. Such harassment, the court concluded, was no less “because of sex” because it denigrated a woman’s competence instead of sexualizing her body.
And in 1998, Justice Antonin Scalia, a strict constructionist when it came to discerning statutory intent, led a majority of the justices in ruling that harassment need not occur between different-sex individuals to be illegal. In a case concerning the vicious abuse endured by a male oil rig employee at the hands of his male co-workers, Justice Scalia waved away critics who argued that the 1964 Congress never intended to outlaw harassment perpetrated by men against men: The “principal concerns of legislators” at the time of a statute’s enactment, he wrote, matter less than what the law actually says; its protections, he said, “often go beyond the principal evil to cover reasonably comparable evils.”
For decades, the law has recognized that there is no single way to live one’s gender, whether at work or anywhere else. Ending discrimination against LGBTQ employees doesn’t contradict Title VII’s history; it is the next logical step in that path.