Because of sex. Over the past 55 years, that single three-letter word has had momentous legal and social consequences for American life that the man who inserted it into the 1964 Civil Rights Act on a wintry Saturday morning could never have imagined. And now that the Supreme Court has agreed to decide whether that landmark law forbids employment discrimination based on sexual orientation and gender identity, the adaptive power and enduring meaning of that plain little word is about to be tested once more.
On February 8, 1964, as the House of Representatives debated passage of the bill, Howard Smith, an ardent segregationist from Virginia, rose to propose changes to four pages of Title VII, the section of the bill barring hiring and firing “because of” race, creed, religion, or color. “After the word religion, insert sex,” Smith drawled, urging his colleagues to rectify “this grave injustice … particularly in an election year.”
The result was two hours of pandemonium on the House floor, because Smith’s amendment was seen by the frantic pro–civil-rights forces as a poison pill that might put the whole bill at risk—a bill that would end Jim Crow segregation in public accommodations, help ensure voting rights for long-disenfranchised populations, and just more or less win the Civil War, only a hundred years too late. It’s a story I recounted in my book An Idea Whose Time Has Come. Hard as it may be to fathom a half century later, the notion that women deserved protection from discrimination in employment was as controversial in some quarters as the idea that racial minorities did—and, even to some liberal Democrats, much more laughable.