Next week the Supreme Court will hear oral arguments in cases that ask whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination on the basis of sex, extends to discrimination on the basis of sexual orientation and transgender status.
It’s an odd legal argument, given that the public meaning of the word “sex” in 1964—and today, for that matter—refers to our status as male or female, not our sexual attractions, desires, actions, or identity. That’s why progressive activists have been trying for the past forty years to get Congress to pass laws that would add “sexual orientation” as a protected class, and it’s why they’ve been doing the same for “gender identity” for the past dozen years.
Because their attempts to work through the legislative process failed, activists took their arguments to court. And they failed there, too—at least, until April 2017. That marked the first time ever that a federal appellate court ruled that the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation. Prior to that ruling, all eleven appellate courts that had addressed the issue had ruled that “sex” does not mean “sexual orientation.” And it wasn’t until March 2018 that, for the first time ever, an appellate court ruled that Title VII banned discrimination based on transgender status.
Activists would like to see the Supreme Court affirm these novel—indeed, activist—appellate court rulings, redefining the term “sex” in the Civil Rights Act and embracing a simplistic account of “discrimination.” Here’s why it shouldn’t.
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What Is Sex Discrimination?
In 1998, the Supreme Court explained in Oncale v. Sundowner Offshore Services, Inc., that Title VII requires “neither asexuality nor androgyny.” It requires equality and neutrality. It does not exclude all sex-conscious standards, but it does exclude double standards for men and women—policies that disfavor at least some individuals of one sex compared to similarly situated members of the other. That was the explicit position of the unanimous Court in Oncale, which quoted Justice Ginsburg: “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.”
The unanimous Court in Oncale echoed what a plurality opinion had said several years earlier, in the 1989 case Price Waterhouse v. Hopkins: that sex may not be used to create “disparate treatment of men and women.” Under Oncale and Price Waterhouse, courts applying Title VII must ask whether some women are subject to disadvantageous terms not faced by men in a similar position, or vice versa. Courts must look, in short, for unfairness due to sex. Mere consideration of sex is not enough.
This is why bans on sex discrimination didn’t abolish sex-specific private facilities (like bathrooms), sex-specific fitness standards (for police and firefighters, for example), or sex-specific athletic competitions (like the NBA and WNBA). After all, sex-specific bathrooms, fitness standards, and sports leagues don’t create disadvantageous conditions. On the contrary, they prevent disadvantageous treatment. That’s because they take sex differences seriously where they make a difference, for the sake of privacy and equality.
Yet LGBT activists effectively urge the Court to adopt a theory of sex discrimination that would rule out any policies that refer to sex, judging them to be inherently discriminatory. That would lead to asexuality and androgyny—precisely what the Court has said Title VII does not require.
Title VII Does Not Simply Forbid Any Action “Causally Linked” To Sex
The oral arguments next week center on whether the ban on “sex” discrimination extends to discrimination on the basis of sexual orientation and transgender status. The only way for the lawyers arguing this position to make their case is to reject the Ginsburg reading of Title VII—where it prohibits double standards for men and women—and to advance a novel theory where any reference to sex constitutes discrimination on the basis of sex. While this new approach is increasingly hailed as providing a knockdown textualist argument, it suffers from a fatal flaw.
According to the version proposed by lawyers for the employee in the gender identity case (Stephens), “any time the same decision would not have been made had the employee’s sex been different, an employer discriminates ‘because of sex.’” In the same vein, law professors Andy Koppelman and Bill Eskridge, amici on the side of the employees, propose that “an employer violates the law if it (1) takes negative employment action (2) that is causally linked to (3) the sex of the employee.”
This theory fails, because not every employment policy “causally linked” to sex imposes a disadvantage on individuals of one sex compared to similarly situated members of the other sex. So the theory doesn’t isolate sex discrimination. It flouts the Ginsburg reading—on which Title VII forbids only double standards for the sexes. Contrary to Oncale, it requires asexuality and androgyny.
To see why, let’s look at what embracing this theory would require.
Suppose a male employee at a fitness center repeatedly goes into the women’s locker room and is fired. Had his “sex been different” he would not have been fired. In that sense, his termination was “causally linked” to his sex. But the termination was not sex discrimination, because it reflected no double standard for men and women. Female employees who went into the men’s locker room would be fired too. The employer was simply enforcing a locker room policy that imposed the same “burden” on men and women: restriction to one specific locker room, based on sex.
Or suppose a female lifeguard is fired because she wears swimsuit bottoms but refuses to wear tops. Had her “sex been different,” she would not have been fired. The decision to fire her was “causally linked” to her sex. Yet her termination was not sex discrimination under Title VII, because a male lifeguard who exposed his private parts would have similarly been fired. The attire policy did not create a disadvantage for women that it did not impose on men: both are required to dress in ways that cover private parts.
The test put forth by the LGBT advocates is too simplistic. It does not test for sex-based discrimination. In both of the above examples, the employees were fired because they violated policies that do not disadvantage women compared to analogous men, or vice versa.
Far from being an instance of sex discrimination, preventing males from entering women-only private facilities is actually required to avoid sex discrimination. Justice Ginsburg took this point for granted in her majority opinion in United States v. Virginia, when she explained that, for the all-male Virginia Military Institute to become co-ed, it “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.” Moreover, in 1975, when critics argued that the Equal Rights Amendment would require unisex intimate facilities, then-Professor Ginsburg explained that a ban on sex discrimination would not require such an outcome: “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.”
So it isn’t sex discrimination to act in a way “causally linked” to sex when sex is a relevant factor and you don’t disadvantage individuals of one sex compared to similarly situated members of the other sex. By contrast, an employer who allowed males to enter private women-only facilities would be guilty of sex discrimination under Title VII, because doing so would foster a hostile work environment. Yet the activists would hold such an employer guilty if he prevented males from entering. Their theory requires asexuality and androgyny, but Title VII does not—it forbids double standards and protects sensible workplace privacy policies.
Double Standards Based on Sex Are At the Heart of Sex Discrimination
The simplistic account of discrimination is easy to see when you look at concrete examples. Lawyers for Stephens, the employee in the gender identity case, claim:
Much as Ms. Phillips [the employee in a 1971 Title VII case, Phillips v. Martin Marietta Corp.] was discriminated against for being a woman and for having young children, so Ms. Stephens was fired for having a male sex assigned at birth and for living openly as a woman. That is sex discrimination.
But this assertion ignores the actual structure of the discrimination in Phillips. Phillips was discriminated against on the basis of sex because men with young children were not held to the same terms as women with young children. Had both men and women been held to the same standard, there would have been no disparate impact on men and women and hence no double standard. Nor is there any double standard here. Both males and females who refused to abide by the dress code would be treated in the same way.
The same is true in the sexual orientation cases. Yet lawyers for one of the employees there (Zarda) argue:
Had Martin Marietta articulated its policy as a refusal to hire “mothers,” rather than not hiring “women with young children,” the result would have been the same. Phillips’s sex (plus her parental status) is why she did not get the job. . . . The same logic applies to Zarda. Were he not a man, he would not have been fired for his attraction to men. Conversely, persons who shared his attraction to men but not his sex (i.e., “heterosexual women”) were not denied job opportunities. Saying he was fired for being “gay” does not change the analysis. Thus, Zarda has properly alleged discrimination “because of [his] sex.”
But the reason Martin Marietta was guilty of discrimination based on sex was not that it used certain magical words (“women with young children,” rather than “mothers”), but that it went easier on “men with young children” and “fathers.” If it had had an evenhanded policy regarding all “people with young children” and “parents,” there would have been no sex discrimination. So, too, an evenhanded policy against same-sex relationships does not discriminate on the basis of sex.
The lawyers obscure this dispositive point by picking the wrong comparator. Comparing Zarda to “persons who shared his attraction to men but not his sex (i.e., ‘heterosexual women’)” changes two factors—sex and sexual orientation—and so fails to ferret out the basis for the employment decision. Comparing a homosexual man to a heterosexual woman will not tell us whether the employment decision was driven by sex or by sexual orientation. In determining the basis of an employment decision, we should hold orientation constant and vary just the employee’s sex: the question is whether men and women attracted to their own sex are treated differently from each other.
Stephens’s argument, too, changes two factors—sex and transgender status. Stephens argues that Harris Homes “would not have fired Ms. Stephens for identifying and living openly as a woman if she were assigned a female sex at birth.” Well, yes, Harris Homes would not fire a woman who followed the women’s dress code. But that’s not an apt comparison to Stephens—a man who sought to follow the women’s dress code. Comparing Stephens to a cisgender woman changes two factors—sex and transgender status—and thus fails to hold constant all factors but sex. The proper comparison would be a woman who sought to dress according to the men’s dress code. That way both employees identify as transgender, and all that is changed is their sex. Comparing a transgender male to a cisgender female will not tell us whether the employment decision was driven by sex or by transgender status. The question is whether men and women who identify as the opposite sex are treated differently from each other. Harris Homes reports they would dismiss a female employee who sought to abide by the male dress code. In other words, there’s no double standard for men and women, so there’s no discrimination on the basis of sex. Both males and females who identify as transgender are held to the same standard.
Three Different Forms of Discrimination
Imagine an employer who won’t employ women but will employ men, or who won’t employ women with kids but will employ men with kids. This would be discrimination on the basis of sex, because “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” It’s a double standard for men and women.
By contrast, consider an employer who will hire straight men and women, but not men and women who identify as gay. Men and women are exposed to the same exact terms and conditions, so this wouldn’t be discrimination based on sex. The employment action doesn’t hinge on male or female, but on gay or straight.
And lastly, consider an employer who will hire cisgender men and women, but not transgender men and women. Here, too, men and women are exposed to the same exact terms and conditions, so this wouldn’t be discrimination based on sex. The employment action here isn’t concerned fundamentally with male or female, but with cisgender or transgender.
Now, whatever you may think about these three cases as a matter of ethics or public policy, Congress acted in 1964 to address only the first case—and it has explicitly rejected policies to address the latter two. People can debate whether that is or is not a good thing. But, as a legal matter, the issue is clear. Discrimination on the basis of sex is prohibited, but discrimination on the basis of sexual orientation and gender identity is not. And, of course, there’s good reason why Congress has rejected calls to legally prohibit “discrimination” on the basis of “sexual orientation and gender identity.” Much of what the activists claim is “discrimination” is simply disagreement about human sexuality, where acting based on true beliefs about human sexuality is re-described as discriminatory.
Redefining Sex and Embracing a Simplistic Account of Discrimination Will Have Drastic Consequences
If the Supreme Court were to adopt the activists’ theory, it would not simply distort the statutory text but would also cause serious practical harms—and unsurprisingly so. After all, the Court would be rewriting the law Congress passed—but with no opportunity for legislators to add to the definitions, qualifications, and limits they might have included if they had actually decided to address sexual orientation and gender identity. For instance, the activists’ position would either require the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than his or her objective biology. It is telling that the activists are evasive about which of these outcomes is required by their theory. Making the theory’s implications explicit would prove decisively that their reading is unsound.
It would also highlight the severe consequences for privacy, safety, and equality. Employers would be prevented from protecting their employees’ privacy and would be exposed to ruinous liability. They would have to cover objectionable medical treatments. Physicians would have to perform them against conscience. And the consequences would not be limited to the employment context. If this new theory of sex and of discrimination is imposed on Title VII, then why not Title IX? Yet an activist reading of sex discrimination would spell the end of girls’ and women’s athletics, and of private facilities at school.
In short, activists ask the Court to rewrite our nation’s civil rights laws in a way that would directly undermine one of their main purposes: protecting the equal rights of girls and women. Congress did not legislate such an outcome, and the Court should not usurp Congress’s authority by imposing such an extreme policy on the nation. Biology is not bigotry, and the Court should not conclude otherwise. Only Congress, not the Court, can craft policy to address sexual orientation and gender identity—distinct concepts from sex—with attention to all the competing considerations.