Sex and the Supreme Court: Could Your Job Soon Be at Risk?

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September 17, 2019

In three cases to be argued on October 8th, the Court will determine whether Title VII of the 1964 Civil Rights Act permits employers to discriminate against employees because they are LGBTQ. Needless to say, the stakes are high.

In addition to threatening LGBTQ security in the labor market, the Court’s decision could have broader repercussions. Courts tend to interpret discrimination provisions of other anti-sex discrimination laws consistently with Title VII. A favorable decision may protect us in other areas, including education, housing, and healthcare. A loss, on the other hand, could take us back decades.

But there is good news! These cases should not be difficult for the Court to decide, and to decide correctly. The words of a law are by far the best source of its meaning. And the words of Title VII are squarely on our side.

Title VII prohibits discrimination against an employee “because of” sex. There is no exception for lesbian, gay, or bisexual workers and no exception for transgender employees. If an employer fires a worker of one sex, in circumstances where it would not fire someone of another sex, it has committed illegal sex discrimination.

Consider, for example, two office workers: Both have pictures of their wives on their desks. The boss fires one of them for this, but compliments the other for the photo. Why on earth this difference? Well, assume further that it was John that got the compliment, and Jane that received the pink slip. What could be clearer than that the firing of Jane was based on her sex?

Or, how about this: Angelica has been a wonderful employee for 20 years. Her performance remains excellent and coworkers and customers love her. But in reviewing some records, the boss discovers that Angelica’s original birth certificate listed her as male. The boss fires her immediately. Even if the boss has an outdated and narrow view of Angela’s sex, the fact remains that the boss fired her “because of” it.

Thus, both Jane and Angelica are protected under Title VII, by virtue of the clear words of the law. They were fired “because of” the sex the employer ascribes to them. To be sure, there are other persuasive arguments why they are protected by Title VII. But the words of the statute clearly support coverage. Were they to bring Title VII cases, they should win for this reason alone.

And so should the LGBTQ plaintiffs in the pending Supreme Court cases.

But nothing is easy in the atmosphere of hate and division promoted by the Trump administration. Overruling the Equal Employment Opportunity Commission (EEOC) and reversing a prior DOJ position, the Trump Justice Department has aligned with the anti-LGBT litigants and argued that discrimination against us should be legal. Their arguments are deeply flawed as a legal matter, and they demonstrate contempt for our community.

Specifically, our opponents seek to limit the reach of Title VII by debating understandings of “sex” in 1964, when the statute was passed. They invite the Court to narrow the statute’s reach by making assumptions based on original expectations. But this is precisely what the Supreme Court condemned in Oncale v. Sundowner Offshore Services, where it held that Title VII prohibits same sex sexual harassment. And it did so unanimously and via an opinion by the iconic conservative, Justice Antonin Scalia.

Our opponents’ argument, moreover, focuses on the wrong words of the statute. The question is not what sex means in the abstract, or whether people fall in a category that should be protected. Rather, it is the conduct that Title VII regulates, and it prohibits adverse actions made by an employer “because of … sex.” As we have seen, discrimination based on sexual orientation or transgender status necessarily takes determinative account of the victim’s sex. And this is true no matter how archaic a view of the term “sex” that anti-LGBTQ advocates may prefer. Title VII protects all individuals.

The anti-LGBT advocates thus miss the point legally. And in diverting attention from the discriminatory conduct and placing it on the victims, some again take license to characterize the community in demeaning and disdainful terms. Despite an occasional crocodile tear shed to obscure their most hateful arguments, one senses that the Trump DOJ and its allies would gladly return to the bad old days when LGBTQ people were excluded from meaningful participation in much of society.

Thankfully, the Supreme Court, and not our opponents, will have the last word. As we have seen, the terms of Title VII are clear, and they support coverage. Even some of the more conservative justices have followed Justice Scalia’s lead in espousing a judicial philosophy that suggests the clarity of these words should end the matter. This litigation may test whether those justices have the intellectual integrity to apply their professed standards over the protests of their political sponsors and allies. In short, we may soon learn whether the Court will stick to its principles, or whether it has become – as a U.S. Senator recently wrote – “just another arm of the GOP.”

So, do we have your attention?

I hope so! And I hope you stay with us throughout forthcoming posts by my colleagues, who will keep you informed of developments and provide expert legal analysis throughout the remainder of this litigation.

We look forward to continuing this fight along with you.