After the U.S. Supreme Court ruled four years ago in favor of same-sex marriage, gay Americans in many parts of the country found that they could be married on Sunday only to be fired from their jobs on Monday because of their sexual orientation. This unjust situation endures today, but the court has an opportunity this term to rectify it. The justices can and must do so.
On Tuesday the court will weigh whether gay and transgender employees are protected not by the Constitution — the authority it cited for its marriage ruling — but by the 1964 Civil Rights Act. Title VII of that landmark law makes it illegal to dismiss or discriminate against any employee “because of such individual’s race, color, religion, sex, or national origin.”
The question for the court is whether discrimination against gay or transgender employees constitutes sex discrimination. The answer is emphatically yes, even though these forms of discrimination may not have been on the minds of the members of Congress who enacted the Civil Rights Act.
The first oral argument to be heard Tuesday concerns two claims of alleged discrimination on the basis of sexual orientation. One was filed by Donald Zarda, a New York skydiving instructor who said he was fired after telling a female customer to whom he would be strapped during a dive that he was gay, in an attempt to ease any nervousness she might be feeling. (Zarda has died, but his lawsuit is being pursued by his mother on behalf of his estate.) A second plaintiff, Gerald Bostock, says he was fired as child advocate for the Clayton County, Ga., juvenile-court system after he joined a gay softball league.
Additionally, the justices will consider a claim by a transgender woman named Aimee Stephens who says she was dismissed from her job at a Michigan funeral home after she informed the owner that she was transitioning to female and would be dressing as a woman at work.
If the plaintiffs were fired because they were gay or transgender, that’s an outrage. But is it a violation of Title VII? Some judges have answered no because the term “sex discrimination” wasn’t thought to include discrimination on the basis of sexual orientation at the time Title VII was enacted.
The Trump Justice Department is also taking a narrow view of sex discrimination prohibited by Title VII. In his brief in the funeral-home case, U.S. Solicitor General Noel Francisco argues that when Title VII was enacted, “‘sex’ meant biological sex” and referred to the “physiological distinction” between male and female. (Francisco’s brief cites a definition of “sex” from a 1958 edition of Webster’s dictionary.)
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There are several problems with this narrow approach, as lower federal courts have recognized.
First, as we have noted before, both society and the legal system have come to recognize that discrimination on the basis of sex involves more than (as one judge put it) “the simple decision of an employer not to hire a woman for Job A, or a man for Job B.” Prejudice against gay or transgender employees is interwoven with attitudes about sexuality and “appropriate” gender behavior.
Reflecting that reality, the Supreme Court has held that the ban on sex discrimination in the workplace covers sexual harassment, including same-sex harassment, as well as discrimination based on a person’s failure to conform to gender stereotypes. (In ruling in favor of Stephens, the fired funeral-home employee, the U.S. 6th Circuit Court of Appeals held that discrimination against transgender persons could be challenged under Title VII’s prohibition of decisions based on “sex stereotypes.”)
It’s also a mistake to limit the application of a broadly worded law against sex discrimination to conduct that was actually on the minds of the members of Congress who voted for it. The late Justice Antonin Scalia made this point in a 1998 decision in which the court said that a male worker who claimed he had been sexually harassed by male co-workers could bring a lawsuit under Title VII. This was possible, Scalia wrote, even though male-on-male harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.”
It’s true that Congress could legislate an explicit ban on to workplace discrimination on the basis of sexual harassment or gender identity. A bill passed by the Democratic-controlled House in May did just that, as well as outlawing such discrimination in housing and access to public accommodations.
But it’s also true that the existing law’s language about sex discrimination, read in the context of the times, amply justifies lawsuits alleging discrimination on the basis of sexual orientation and gender identity. That is how the court should rule.