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Title VII of the Civil Rights Act prohibits discrimination on the basis of sex. To me, the entirely logical extension of that prohibition is that Title VII also prohibits discrimination on the basis of sexual orientation. If you can’t punish a woman for having sex with a man, then you can’t punish a man for having sex with a man. If you do, you are punishing a man not based on his action, but based on his gender. The opposite conclusion is intellectually dishonest wordplay that neuters the very idea of gender discrimination.
Of course, if there’s one thing the current conservative majority on the Supreme Court likes, it’s intellectually dishonest wordplay.
Today, the Supreme Court agreed to take three cases about the interpretation of Title VII. They granted cert on a Second Circuit case where a sky-diver says he was fired for being gay. The Second Circuit ruled in favor of the sky-diver, holding that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” They granted cert on an Eleventh Circuit case where a social worker was fired for being gay. The Eleventh Circuit held that “discharge for homosexuality is not prohibited by Title VII.” And they threw in a transgender case where the Sixth Circuit ruled that “[i]t 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.”
At some level, the Supreme Court has to take these cases. We’re looking at a classic circuit split. Different federal courts are interpreting the same provision of the same law radically differently. Settling this issue is why we have a Supreme Court in the first place.
Unfortunately, the only thing worse than a circuit split is the Supreme Court deciding the issue poorly. And that is likely what will happen next term. Four of the conservative Supreme Court justices (John Roberts, Clarence Thomas, Sam Alito, and Neil Gorsuch) have shown open hostility to gay people during their time on the Court, and the fifth conservative is Brett Kavanaugh who has gone about his entire career as a partisan hack. Reading of “on the basis of sex” to exclude people who are discriminated against because of their gender while having sex seems to be right up the alley of these five men.
It’s hard to emphasize enough just how dumb the conservative reading is here. It is fair to say that sexual orientation was not contemplated by the drafters of the Civil Rights Act. But Title VII has already been read to prohibit behaviors that the writers of Title VII did not intend to prohibit. We call those behaviors “sexual harassment” now, but reading in sexual harassment as a form of sexual discrimination didn’t happen until 1986 in Meritor Savings Bank v. Vinson. That’s the case that established a “hostile work environment” as being prohibited by Title VII.
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It’s like having a junior associate who’s never off the clock.
If a gay man fires a male employee for not sleeping with him, he is in violation of Title VII’s ban on sex discrimination. But if a straight man fires his male employee for sleeping with other men, the straight male would be protected under the narrow “on the basis of sex” reading conservatives would apply to Title VII. It’s freaking madness. Since the Civil Rights Act doesn’t make stupidity a protected class, I’m well within my rights to advocate firing any employees you may have who are so dumb as to think Title VII shouldn’t apply to gay people.
I struggle to even conceive of the hate-filled mind that is able to think that transgender individuals are not being discriminated against on the basis of their gender. All transgender discrimination is gender discrimination by its very definition. Trying to dodge that is like trying to fire people not because they’re black, but because they have “nappy hair.”
Still, if I had a dollar for every time a conservative made a facially stupid argument in order to justify mistreatment of “others,” I’d be able to afford my own Supreme Court justice. Unless one of the conservatives suddenly finds out that their favorite grandchild is gay — which is apparently the only way conservatives are able to learn basic human empathy — I fear a ruling that will effectively prevent the LGBTQ community from seeking redress against the discrimination they suffer at work.
Unless Congress acts. Many progressives, searching as we are for “silver linings” in the morass of bunk being thrown at us by the Mitch McConnell’s Supreme Court, have pointed out that the loss of the courts will force liberals to work through electoral politics to achieve their policy aims. Here, any Supreme Court opinion that smashes LGBTQ discrimination claims will rest on the fact that Title VII doesn’t explicitly mention sexual orientation. Congress can fix that the day after the decision. If it goes ill (and really, even if somehow the Second Circuit interpretation wins the day), Congress should introduce an amendment specifically including sexual orientation and transgender identification as prohibited forms of sexual discrimination. Democrats will still control the House when this case is decided, so passage should be a layup.
In the Senate, I’d very much like to see all of these vulnerable Republicans trying to campaign with a horrible anti-LGBTQ vote hanging around their necks. Susan Collins put Kavanaugh on the Court. I’d love to have her either defend his vote here, or explain why the man she supported is wrong in exactly the way everybody told her he would be.
If the Supreme Court is going to try to destroy rights, Congress will have to step up and defend them. Winter is coming, vote accordingly.
Supreme Court to Decide Whether Bias Law Covers Gay and Transgender Workers [New York Times]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.