Editorial: The Supreme Court could soon affirm — or undermine — LGBTQ rights

American Civil Liberties Union activists demonstrate in front of the Supreme Court in Washington on June 4, 2018.
(J. Scott Applewhite / Associated Press)

The Supreme Court has played a historic role in ending discrimination against gay people, most recently in a 2015 ruling that the Constitution required civil marriage to be available to same-sex couples. The question is whether the court’s conservative majority, including two justices appointed by President Trump, will tarnish that record by taking a needlessly narrow view of a landmark civil rights law.

That troubling possibility arose Monday when the court agreed to hear three cases involving Title VII of the 1964 Civil Rights Act, which prohibits discrimination in the workplace because of “sex.”

Two of the lawsuits were brought by gay employees — one a New York skydiving instructor, the other a child welfare services coordinator in Georgia — who alleged that their dismissals violated Title VII. In the skydiver’s case, the U.S. 2nd Circuit Court of Appeals ruled that sexual orientation discrimination is a “subset of sex discrimination.” In the other case, the U.S. 11th Circuit Court of Appeals ruled that Title VII did not apply.


The third case the court accepted for review involves a transgender woman who says she was fired by a Michigan funeral home after she informed the owner that she was transitioning to female and would be dressing as a woman at work.

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The U.S. 6th Circuit Court of Appeals ruled in her favor, concluding: “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.” (The appeals court also said that discrimination against transgender persons could be challenged under Title VII’s prohibition of employment decisions based on “sex stereotyping.”)

It’s understandable that the Supreme Court would want to resolve a split among the circuits about the reach of the statute. But in doing so, it should accept the broader reading of Title VII. That outcome is required not only by society’s evolving understanding of gender and sexuality but also by the court’s precedents.

When Title VII was enacted, the lawmakers who voted for it almost surely weren’t thinking of discrimination against gay or transgender employees. At the time, the modern gay-rights movement was in its infancy, and few Americans were familiar with transgender people.

Yet over the years society, and the courts, have come to recognize that discrimination on the basis of “sex” involves more than (as one appeals court 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 intimately interwoven with attitudes about sexuality and “appropriate” gender expression.


Reflecting that reality, the Supreme Court has held that the ban on sex discrimination in the workplace covers sexual harassment in the workplace, including same-sex harassment, as well as discrimination based on a person’s failure to conform to gender stereotypes.

Writing for the court in a 1998 decision involving alleged harassment of a male worker by other men on an oil drilling platform, the late Justice Antonin Scalia suggested that courts should focus on the words of a statute rather than what was in the legislators’ minds.

Scalia conceded that male-on-male harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

If the court takes the same sophisticated approach in dealing with these new cases, it will hold that discrimination on the basis of sexual orientation or gender identity is sex discrimination.

In ruling in favor of marriage equality, the Supreme Court recognized that language in the Constitution must be interpreted in the light of what Justice Anthony M. Kennedy called “new insights and societal understandings.” The same is true of the Civil Rights Act’s prohibition of discrimination on the basis of “sex.”

Finally, the court shouldn’t limit the reach of Title VII merely because Congress could conceivably amend it to explicitly outlaw workplace discrimination on the basis of sexual orientation or gender identity. Proposals to that effect have been introduced and have our support. But the possibility that Congress might act someday shouldn’t deter the court from doing in these cases what it often does: interpret a statute in a way that applies its overarching purpose properly to new realities.


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