The Supreme Court will hear oral arguments today on behalf of three workers who say they lost their jobs because they are gay or transgender. The court is poised to determine whether LGBTQ workers are covered by Title VII of the Civil Rights Act of 1964, which bans sex discrimination in employment.
It might seem like LGBTQ workers are asking the court to stretch the meaning of a law designed to protect cisgender women. This is what 48 members of Congress and 15 state attorneys general argued in their recent amicus brief to the court, claiming that the concepts of “sex,” “sexual orientation” and “gender identity” “had different meanings” when the law was passed in 1964, and warning the court not to “erroneously … broaden Title VII beyond its congressionally intended scope.”
But Title VII’s ban on sex discrimination has always been ambiguous and flexible. Women and LGBTQ people have long demanded, and government officials have often affirmed, definitions of protected sex equality that encompass identity-based concerns that are far broader than treating men and women interchangeably at work. A ruling against LGBTQ workers, not one in their favor, would represent the real distortion of Title VII’s history and historical meaning.
The ambiguity in Title VII took root even before the Civil Rights Act became law. Its drafters designed the provision to attack racism at work. This was a problem the mainstream civil rights movement defined, and most lawmakers understood, as a matter of stigma and stereotype. Its solution, they argued, was to decenter race as a relevant characteristic in determining who got jobs and promotions and how workers were treated.
The framers of the Civil Rights Act did not initially even intend for gender to be part of the provision. At the time, each state had its own combination of “protective” labor laws that regulated women’s working hours, conditions and pay — meant, in theory, to safeguard their best interests. Women’s advocates and labor unions hotly debated whether a federal law that wiped out these protections would ultimately benefit women.
Many activists, in fact, balked when Rep. Howard Smith, a conservative Virginia Democrat, convinced his fellow lawmakers to add sex to Title VII at the 11th hour, without hearings or debate over its meaning, probably because he hoped this maneuver could kill the act entirely and protect segregation. To his surprise, and that of many others, the law passed with the new provision included.
The Equal Employment Opportunity Commission, a new federal agency created to police Title VII, therefore got very little guidance on how to interpret the sex provision, which had been “tacked on rather suddenly,” grumbled EEOC Chairman Franklin Delano Roosevelt Jr. Other EEOC officials publicly mocked the sex provision as a “fluke” that had been “conceived out of wedlock” and mused that enforcing the sex discrimination ban could mean requiring the Playboy Club to hire hairy-legged male bunnies.
While federal officials joked about the provision, workers took it seriously. They flooded the EEOC with 4,000 sex discrimination complaints within the first two years alone — complaints that revealed workers’ expansive interpretations of the law. In free-form letters, they demanded that Title VII encompass more autonomy at work, better hours and pay, bodily autonomy, and financial security. As Massachusetts factory worker Thelma Pilch wrote to the EEOC in 1966, claiming that her capricious boss, physically taxing work and unsanitary working conditions were all matters that Title VII should address, “We have no union but we do have some rights don’t we?”
Before the EEOC streamlined its processes and reporting forms in the early 1970s, bureaucrats investigated these kinds of self-fashioned claims as issues that Title VII’s ban on sex discrimination could address. It was the agency’s mounting backlog of cases — which topped 81,000 by 1968 — more than any consensus definition of sex discrimination that sharpened the agency’s criteria for investigating these complaints.
Workers continued to project their aspirations for fair treatment onto Title VII. The provision was open to so many different interpretations because sex could be defined in many ways: as a matter of innate biology, of sexual desire and of rigid sex roles. When aspiring flight attendant Celio Diaz Jr. used Title VII to sue Pan American World Airways in 1967 because the company limited the job to women, the company defended the practice by appealing to societal suspicion of effeminate and gay men. The airline called as an expert witness a psychiatrist who claimed that male flight attendants would unsettle the average male passenger by “arous[ing] feelings in him he would rather not have aroused.”
But Diaz won, with the U.S. Court of Appeals for the 5th Circuit ruling that femininity and masculinity can be explicit job attributes only in rare cases. The Supreme Court has since affirmed this principle, holding in Price Waterhouse v. Hopkins (1989) and Oncale v. Sundowner Offshore Services (1998) that discrimination on the basis of sex stereotypes — that is, punishing masculine women or effeminate men — is unlawful sex discrimination, as is same-sex sexual harassment.
Activists have also demanded, and courts have often accepted, sex-based Title VII claims that recognized how race and class shaped sex and gender discrimination. In 1994, in Lam v. University of Hawaii, the U.S. Court of Appeals for the 9th Circuit opined that Asian women experienced “disadvantages that are not shared by Asian men or white women,” and thus courts must determine whether an employer discriminates “on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex.”
And for a time in the 1970s and early 1980s, courts even affirmed the theory of comparable worth, which argued that only sexist stereotypes and historical discrimination could explain why jobs requiring equal skill were paid differently. As a Madison, Wis., nurse testified in a suit against the city, nurses should not “feel they should have to become carpenters or plumbers to be paid equitably.” In a different case, a federal judge ordered the state of Washington to lay the groundwork to give comparable-worth raises to women throughout the state’s labor force. Other states soon followed suit. Only when conservatives appointed by President Ronald Reagan took over federal agencies and judgeships in the mid-1980s did lawmakers decide that remaking employers’ pay practices in the name of sex equality should be beyond Title VII’s scope.
But the pattern is clear: While some of these claims lost in court or saw more-conservative bureaucrats short-circuit them, Title VII’s meaning has not been limited to cisgender or heterosexual plaintiffs. Instead, dating to its origins, Title VII’s essence has been hotly contested, with workers and activists seizing upon the ambiguities to demand and win protections that respect how sex discrimination means different things to differently situated workers.
This history demonstrates that the court could easily interpret the provision to protect LGBTQ Americans without distorting the intent of Congress. The provision is vague, and its history is one of constant change that has enabled Title VII to fit our ever-shifting understanding of sex discrimination. It would be far more troubling for the court to suddenly constrict its interpretation of the provision, which would introduce dramatic new limits to the meaning of sex equality with devastating effect.