Why ‘Because of Sex’ Should Protect Gay People

If a majority of the Supreme Court concludes that discrimination against LGBTQ people is discrimination “because of sex,” thousands of people will be protected on the job. If not, many stand to lose their livelihoods.

Forty years ago, I rented a rural Virginia cottage from a local grande dame imposingly named Butler Brayne Thornton Robinson Franklin but known to all as “Muzz.” Muzz died in 2003 at the age of 104, having lived an extraordinary life, with stints in revolutionary Spain and wartime China, followed by decades of stateside activism as a comrade of the feminist leader Alice Paul, founder of the National Woman’s Party and author of the Equal Rights Amendment.

Muzz told me she personally had helped change history by asking Representative Howard W. Smith, a Democrat from Virginia and the powerful chair of the House Rules Committee, to include “sex” in Title VII of the Civil Rights Act of 1964—the section that prohibits employment discrimination. She was telling the truth. Civil-rights advocates had purposely left “sex” out of the bill, believing its addition would galvanize opposition. Suspecting that the bill was going to pass, Paul had asked Muzz and another Virginia feminist, Nina Avery, to write to Smith, an ardent segregationist. Muzz and Avery argued that forbidding job discrimination by race without doing so by sex would further disadvantage women—and especially white women. Smith complied with their request, offering the amendment as if it were a joke. But it was adopted, and the bill passed.

Thus, today, Title VII forbids most employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

“Judge” Smith, as he was known, died in 1976. But imagine that we could summon his shade and ask, “Judge, did you intend for your amendment to protect gay men, lesbians, and transgender people from job discrimination? Did your colleagues in the House?”

I suspect he’d say, “I did not understand a word you said. Can I go now?”

Suppose we decide that Smith’s “intention” in introducing the amendment was to protect white women; suppose we conclude that nobody in Congress in 1964 imagined that Title VII might one day be applied to protect LGBTQ people. Would we then be required to read “because of … sex” to mean “because she is a woman” or even “because she is a white woman”? Of course not. The text says “because of … sex,” and its application starts there.

How the Supreme Court reads that text this fall will make a huge difference in the lives of people all over the country. If a majority concludes that discrimination by sexual orientation or transgender status is discrimination “because of … sex,” thousands of LGBTQ people will be protected on the job; if the Court rejects that argument, many stand to lose their livelihoods.

Is discrimination because of sexual orientation, or gender identity, discrimination because of sex, or because of some other thing altogether? In a trio of cases to be argued in October, employers, supported by the Trump administration, insist that the two things are unconnected. The three cases are:

• Bostock v. Clayton County, in which an employee of a Georgia county was penalized and dismissed after he joined a gay-themed softball league and asked other players to volunteer for work in the court system; the Eleventh Circuit held that this was not an act of discrimination “because of … sex.”
• Altitude Express v. Zarda, in which a skydiving instructor was fired because, while strapping himself to a woman going up for a first jump, he reassured her that he was gay and thus not engaged in groping; the Second Circuit upheld the instructor’s sex-discrimination claim.
• Harris Funeral Homes v. Equal Employment Opportunity Commission, in which a funeral-home employee was dismissed after announcing that she was transitioning to female and would henceforth wear the company’s uniform for female, not male, employees; the federal EEOC supported the employee, and the Sixth Circuit agreed.

Thus, the lower courts need the Supreme Court to settle the question. That resolution will reveal a good deal about the fidelity of the conservatives to a theory several of them espouse. That theory, pioneered by the late Justice Antonin Scalia, is called “textualism.” To give a simplified summary, textualism holds that judges should not guess at the “legislative intent” behind a statute—or even research it by consulting the committee reports and floor speeches that accompanied its passage. The very words of the statute are the only thing that became law with its passage, textualists argue. “The text is the law, and it is the text that must be observed,” Scalia wrote in his influential 1997 book, A Matter of Interpretation: Federal Courts and the Law. In the same book, he wrote, “A text should not be construed strictly and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

The two newest justices say they follow a similar approach. Brett Kavanaugh said in 2017, “Text matters. The text of a law is the law.” Neil Gorsuch proclaimed his admiration for Scalia’s approach in a 2016 lecture, saying judges should not ask which result they favor but “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

Do the words because of such individual’s sex reasonably contain sexual orientation or transgender status? Here, in brief, are three ways to interpret the text, beginning with the textual:

• Textualist: If one reads the text literally, then to treat, for example, a gay employee differently from a straight one is to discriminate because of the employee’s “sex”; if a gay man were a woman, his attraction to a man would be of no consequence. Is it even possible to understand the concept of being gay without thinking of a person’s “sex”? And with transgender people, isn’t the question quite literally which “sex” an employee belongs to? Again, in both cases, the discrimination appears to be “because of … sex.”
• Purposivist: The point of the act as a whole, and of Title VII in particular, was to create equality in the workplace. Thus, faced with two interpretations, judges should read the text in a way that would achieve that purpose. Discrimination by sexual orientation or gender identity works directly against that goal; therefore, it is an absurd and “wrong” interpretation.
• Intentionalist: Congress had no intention of outlawing discrimination against gays and lesbians in 1964 when the statute was passed; and the members barely, if at all, knew that transgender people existed. Congress has repeatedly considered bills to ban discrimination against gay and transgender people, but has never passed them. What Congress had in mind was protecting women from being treated worse than men, and vice versa. Thus, firing a transgender man is not a violation—as long as the employer would also fire a transgender woman. Reading the statute otherwise is not interpretation—it is judicial amendment.

Scalia-style textualists usually reject the “intent” and “purpose” questions, which focus on the meaning of the words at the time of adoption. I know which arguments I buy; to me the question is what because and sex mean—not what sexual orientation or gender identity, neither of which appears in the statute, did or didn’t mean in 1964. I can, however, imagine a conscientious judge struggling with the choice.

Scalia’s analysis in a case called Oncale v. Sundowner Offshore Services demonstrates how his textualist approach works in practice. The plaintiff, a man, was employed on an oil rig, and other men on the crew made his life hell with “sex-related, humiliating actions” until he left the job, feeling that “if I didn’t leave my job … I would be raped or forced to have sex.” (The plaintiff’s sexual orientation is not part of the case record.) He sued the company for sexual harassment—a violation of Title VII. But lower courts held that the statute didn’t cover sexualized harassment of a man by a man (or a woman by a woman, for that matter).

At oral argument, Scalia had been skeptical of Oncale’s claim: “I don’t know why singling him out on the basis of his sexuality means that you’re singling him out on the basis of his sex.” But in the end, he wrote for a unanimous Court, “Male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

He then quoted Justice Ruth Bader Ginsburg’s words from an earlier case: “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”

Oncale wasn’t a case about sexual orientation. Nevertheless, Scalia’s opinion suggests that while applying Title VII provisions to LGBTQ people may not serve the intentions of its framers, that isn’t relevant—if, that is, an employee is being treated differently from one of the other sex.

So—if an employer fires or otherwise penalizes a gay, lesbian, or trans employee, is the adverse action “because of such individual’s … sex”? Is that employee being exposed to “disadvantageous terms to which members of the other sex are not exposed”?

Here’s the “yes” argument: A woman attracted to, sexually involved with, or married to a man would be fine with this employer; a man in the same position would not. Congress in 1964 might not have understood the connection, but the words say what they say. In 1976, the Supreme Court, then all male, decided that discrimination against pregnant women was not “because of … sex,” because, well, some women aren’t pregnant. Congress responded promptly to clarify that, in a statutory amendment saying that the words “‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” That language makes the 1964 “understanding” even less relevant.

A brief on behalf of the funeral-home operator by the religious-rights advocacy firm Alliance Defending Freedom makes the “no” argument: “The proper comparison puts [the plaintiff], a man who identifies as the opposite sex, alongside a woman who identifies as the opposite sex.” In this case, the employer would fire a transgender woman who wanted to wear the male uniform just as it fired the male plaintiff who wanted to wear the female uniform—thus, no discrimination. The brief further argues, “The concept of ‘gender identity’ was not part of the American lexicon in 1964.” Thus, the bill should not now be read to prohibit that kind of discrimination.

The argument against the “because of” relationship, it seems to me, rests on an unspoken, or barely spoken—and perhaps unconscious—assumption about sexual orientation and gender identity. Both of these are obviously related to sex—but only if same-sex attraction ought to exist at all; only, that is, if being gay is an actual mode of being a healthy adult. Until a few decades ago, official psychiatric sources considered homosexuality a “disorder”—and many religious conservatives still believe it is a sin that can be “cured” by various forms of prayer and conditioning.

As for transgender people, religious conservatives continue to insist they don’t even exist. In a revealing footnote to its brief to the Court, the lawyers for the funeral home explain that while the plaintiff’s “counsel indicates it is proper to refer to Stephens as ‘she’ and ‘a woman,’” the funeral home does not wish to; instead, the brief “tries to avoid use of pronouns,” but when necessary “uses sex-based language consistent with Title VII’s meaning.”

In other words, wink wink, Stephens is deluded about who she is. “Transgender,” in this view, is the equivalent of a person who says she is a unicorn. An employer who fired a male employee for insisting he was a female unicorn is not discriminating because of sex, but because of unicorn delusion. Effectively, the right sought by the employers is not merely to discriminate against LGBTQ people; it is to proclaim that, as a matter of law, they do not exist.

In other words, they need to get over themselves. That would be a devastating result.