A skydiving instructor in New York came out as gay and was fired. A Georgia county child welfare services coordinator was discharged when he joined a gay softball league. After six years as a funeral director in Michigan, a woman disclosed she is transgender and was terminated. Their cases are now headed to the Supreme Court.
Title VII of the Civil Rights Act of 1964 broadly protects Americans against workplace discrimination on the basis of “sex.” The question the Court will consider is whether that protection covers discrimination on the basis of “sexual orientation” (whether you are lesbian, gay, bisexual, or non-gay) and “gender identity” (whether you are transgender or not).
Numerous lower courts, including several of the federal appellate courts, as well as the Equal Employment Opportunity Commission (EEOC), have held that it does. They are right.
As the 7th Circuit wrote in an en banc decision of the full court, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ ”
Black’s Law Dictionary defines homosexuality as “Of relating to, or characterized by sexual desire for a person of the same sex.” Merriam-Webster’s defines it as “Of, relating to, or characterized by a tendency to direct sexual desire toward another of the same sex.”
You can’t define sexual orientation without reference to sex, you can’t even spell “sexual orientation” without “sex” and, as the 7th Circuit concluded, “the common-sense reality [is] that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
Likewise, the 6th Circuit held that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” In that case, an employee considered excellent and well-qualified when thought to be a man was terminated days after she began coming to work in her true gender identity as a woman.
As a man, fit; as a woman, fired. No wonder even Judge William Pryor, a right-wing darling on President Trump’s shortlist for the Supreme Court, found that anti-transgender discrimination is a subset of sex discrimination prohibited under existing federal law.
Courts have agreed that sexual orientation and gender identity are aspects of sex discrimination for several reinforcing reasons. “First,” the 2nd Circuit explained in a ruling of the full court, “sexual orientation discrimination, such as suspending a lesbian employee for displaying a photo of her female spouse on her desk while not suspending a man for displaying a photo of his female spouse, ‘is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.’ ”
“Second,” the 2nd Circuit held, “it is associational discrimination because an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex. Lastly, sexual orientation discrimination necessarily involves discrimination based on gender stereotypes, most commonly heterosexually defined gender norms.”
These cases did not come out of the blue. For more than 40 years, courts have noted, “the Supreme Court has recognized that ‘employment decisions cannot be predicated on mere stereotyped impressions about the characteristics of males or females,’ because Title VII strikes “at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’ This is true of stereotypes about both how the sexes are and how they should be.”
Prohibited stereotyping under the Civil Rights Act, the Supreme Court held 30 years ago in Price Waterhouse v. Hopkins, includes firing a woman because she dresses or acts “too masculine.” That 1989 ruling and subsequent cases have been accepted as the rule in workplaces across the nation. As the 7th Circuit recognized, perhaps “the ultimate case of failure to conform” to a sex stereotype is gay people’s attraction to an employer’s idea of “the wrong sex,” or a transgender person’s transitioning into his or her true gender identity. If an employer were to say, “I’ll hire Jews and I’ll hire Catholics, but I won’t hire converts,” would there be any doubt that is religious discrimination?
In a related case, conservative icon Justice Scalia wrote for a unanimous Supreme Court that “statutory prohibitions often go beyond the principal evil [Congress was considering at the time] 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.”
I rarely agreed with Justice Scalia, but when he was right, he was right. The text is clear. And majorities of the public in every state, and even a majority of self-identified Republicans, overwhelmingly favor protections against sexual orientation and gender identity discrimination in the workplace.
In 2015, building on the freedom-to-marry win, LGBT leaders called for work to combat discrimination on several tracks: passing legislation at the local, state, and federal levels; working with businesses and growing public support; pursuing federal litigation under existing law.
Even winning in the Supreme Court under Title VII would not negate the need for additional legislation in Congress and the states, because work in multiple arenas, through multiple methodologies, builds understanding and support in people’s day-to-day lives, lays down building blocks of progress, and delivers protections that reach different people with different remedies.
While moving forward at the state and federal levels with explicit non-discrimination legislation — including H.R. 5, the Equality Act, recently passed by the House of Representatives and endorsed as good for business by the U.S. Chamber of Commerce, no less — we now look to the Supreme Court to hew decades of case law from numerous courts declaring that Title VII is, and must be enforced as, a “broad rule of workplace equality.” There should be no transgender exclusion or gay exception.