Symposium: Let’s talk about sex: why Title VII must cover sexual orientation and gender identity

Vanita Gupta is President and CEO of The Leadership Conference on Civil and Human Rights. Sharon McGowan is Chief Strategy Officer and Legal Director of Lambda Legal. The authors previously served in the U.S. Department of Justice’s Civil Rights Division, Gupta as Acting Assistant Attorney General for the Civil Rights Division, and McGowan as Principal Deputy Chief of the Appellate Section.

After months of anticipation, on October 8, the Supreme Court will hear argument in one of the most closely watched legal disputes working its way through the lower courts: whether Title VII’s prohibition on sex discrimination encompasses claims of discrimination on the basis of sexual orientation and gender identity.

Since the passage of the Civil Rights Act of 1964, it has been illegal to discriminate against an individual in employment on the basis of certain protected characteristics, including their sex. And yet, as is often the case with civil rights, the addition of these federal protections did not eradicate discrimination overnight. Rather, it instigated a conversation that has been playing out in the courts over the last 50 years about what it means to discriminate against someone because of their sex.

Perhaps unsurprisingly, since Title VII’s enactment, employers have tried to limit its protections with arguments that essentially hinged on the notion that Congress was really only trying to address certain forms of discrimination. Repeatedly, however, the Supreme Court has rejected these arguments by, among other things, acknowledging that: Male employees can invoke the protections against sex discrimination, even if they weren’t the primary intended beneficiaries; actions short of termination, including workplace harassment, constitute discrimination; and discrimination can occur even when the parties involved share the same protected characteristic, as in the case of same-sex sexual harassment.

One such important clarification occurred 30 years ago when the Supreme Court ruled that Ann Hopkins could bring a claim of discrimination against her employer, Price Waterhouse, for denying her partnership in the firm due to Hopkins’ failure to conform to sex stereotypes about how women should act and present themselves in the workplace. As has been explained in amicus briefs filed by C-suite executives and blue-collar workers, the significance of the Price Waterhouse decision for the ability of women to access jobs from which they had been historically excluded cannot be overstated. But it also reflected an understanding that discrimination “because of” a characteristic that has historically limited someone’s opportunity — whether their sex, their race or some other aspect of their identity — can take various forms.

Since the Price Waterhouse decision, courts have clarified in a variety of settings that a person’s failure to conform to sex stereotypes cannot be the basis for denying them equal employment opportunity — irrespective of the reason why a person fails to meet their employer’s sex-based expectations. Some of the first post-Price Waterhouse cases involved individuals in the process of gender transitions. In Smith v. City of Salem, for example, the U.S. Court of Appeals for the 6th Circuit made clear that a transgender person who lost their job due to their failure to conform to their employer’s sex-based stereotypes could bring a claim of sex discrimination under Title VII regardless of the fact that the reason for the employee’s nonconformity was their being transgender. A few years later, in Glenn v. Brumby, the U.S. Court of Appeals for the 11th Circuit reached the same conclusion, noting that “all persons, whether transgender or not, are protected from discrimination on the basis of gender stereotypes.” The fact that transgender people, by definition, transgress sex stereotypes did not weigh against coverage. To the contrary, the “congruence between discriminating against transgender [people] and discrimination on the basis of gender-based norms” buttressed the court’s conclusion that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination.”

Although many courts have found it sufficient to ground their rulings in support of transgender employees in the sex-stereotyping analysis of Price Waterhouse, other courts have acknowledged that it is simply impossible to discriminate against an individual for being transgender without relying on impermissible sex-based considerations. As courts have better understood what it means for a person to be transgender (i.e., having an internal and deeply held sense of one’s sex that is different from the sex assigned at birth), it has not been difficult for them to conclude that an employer who is willing to work with someone whom they believed to be one sex, but who refuses to hire or retain an employee upon learning that they were wrong about that employee’s sex, has engaged in sex discrimination. There could be no more straightforward analysis: When the exact same person is a desirable employee if male, but not wanted if female, that is discrimination because of sex.

It is irrelevant that the employee in the above scenario has transitioned to living as the woman that she is. Nor is it a defense for an employer to say that they bear no ill will toward men or women, but only wish to assert a right not to hire transgender people. For this scenario is as much a form of sex discrimination as it would be religious discrimination for an employer to claim that they are comfortable hiring Christians and Jews, but not those who have converted from one religion to the other.

As Judge James Robertson noted in Schroer v. Billington, the analysis in any such case “must begin … with the language of the statute itself.” Whereas courts had previously “allowed their focus on the label ‘transsexual’ to blind them to the statutory language itself,” a faithful application of the words in the statute could leave no doubt that discrimination against a person for having transitioned is discrimination “because of sex.”

Likewise, courts have increasingly recognized that their historical emphasis on whether an employee is gay, lesbian or bisexual has resulted in the creation of a sweeping, judicially created exception that finds no basis in the language of Title VII. In Robertson’s words, courts’ undue focus on whether an employee can be described as gay, lesbian or bisexual blinded them to the fact that an employer who allows a male employee to have a female spouse while firing a female employee for having a wife presents one of the more straightforward cases of sex discrimination that could be crafted into a fact pattern.

Over the last 20 years, numerous courts have heeded Robertson’s admonition to pull off their analytical blinders and, having done so, they have recognized that discrimination against lesbian, gay and bisexual employees is merely one of the many variants of sex discrimination, as is discrimination against someone for being transgender. During this same period, the Equal Employment Opportunity Commission removed its own blinders in a series of decisions, ultimately concluding that its prior interpretation of Title VII had inappropriately limited protections against these forms of sex discrimination, which would otherwise fit squarely within the four corners of the statute.

And yet, notwithstanding the clear text-based arguments supporting the view of these courts and the EEOC, the Trump Department of Justice has decided instead to join forces with those opposed to equality for the lesbian, gay, bisexual and transgender community. In its briefs in the three LGBT Title VII cases that will be heard this term, DOJ has urged the Supreme Court to override the language of the statute by superimposing a judicially crafted exemption that would deny the LGBT community protections against employment discrimination that the law would otherwise provide by its plain terms. The position of the Justice Department in these cases is but the latest example of this administration’s pushing arguments that are detached from either law or fact, reverse-engineered to produce the desired result of rolling back existing legal protections for yet another marginalized group.

Fortunately, as a pure analytical matter, the employees in these cases have the better of the argument and should win the day. But even though the correct answer here is dictated by the words of the statute, it would be a gross oversight to ignore the devastating harm that would result from a decision retracting federal nondiscrimination protections. For example, LGBT people living in states like Georgia, Alabama and Florida would lose protections against discrimination based on gender identity and transgender status which have been in effect since 2011 as a result of the 11th Circuit’s decision in Glenn v. Brumby, noted above. Likewise, LGBT workers in Indiana would return to a world of fear and uncertainty should the court carve out an exception to the protections against sex discrimination that Title VII has been providing since the U.S. Court of Appeals for the 7th Circuit’s 2017 decision in Hively v. Ivy Tech Community College, which held that Title VII prohibits employers from discriminating on the basis of sexual orientation.

And for LGBT people of color, the loss of these protections will only exacerbate their already higher levels of vulnerability to workplace discrimination. There are nearly two million LGBT people of color in America’s workforce, and they are twice as likely to report discrimination as their white colleagues. Should the court carve out LGBT people from our federal employment discrimination statute, employers could much more easily avoid accountability for discrimination based on race by simply packaging their adverse actions as based on an employee’s sexual orientation or gender identity.

In light of Title VII’s clear language prohibiting discrimination because of sex, these cases should be quite easy for the court to resolve in the employees’ favor, which will avoid these direct and collateral harms. And yet we know that much ink will be spilled in an effort to make something simple appear to be rather complicated. To be sure, the resolution of these cases will have a profound effect on the ability of LGBT people to live with dignity and contribute fully to their communities. Ultimately, however, the true question presented in these cases will be whether the words of the statute will command the court’s fidelity.