In 1980, Karen Ulane lost her job as a pilot for Eastern Airlines because she had transitioned from a male to a female identity. Ulane sued under Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex” in the workplace. A federal court dismissed her case. It reasoned that Ulane was not fired because of her sex; she was fired because she suffered from “transsexuality,” an “untraditional and unusual” mental disorder. Today, we know transgender identity is no such thing.
On Tuesday, the Supreme Court will hear arguments on whether Title VII prohibits discrimination based on LGBTQ status. Over the past two decades, an increasing number of lower federal courts have recognized that it does. However, in a set of recent dissents, conservative judges have argued that coverage of LGBTQ workers is inconsistent with the original meaning of the statutory text, and that any change must come from Congress, not the bench. These judges point to the fact that, for the first 40 years of Title VII’s existence, courts declined to extend it to LGBTQ workers like Karen Ulane.
Here’s why that reasoning is flawed. The courts’ refusal to cover LGBTQ workers in the 1970s and ‘80s had nothing to do with the meaning of the statutory term “because of sex.” Those rulings were based on now-discredited views that LGBTQ identities are pathological, unnatural and deviant. The Supreme Court should not rely on these early cases as it considers the issue this term.
It was only after prejudices against LGBTQ people diminished that courts were able to see that Title VII’s text applies to them. The very definitions of lesbian, gay, bisexual, transgender and queer depend on an individual’s sex. If an employee were a man, for example, no one would object to his marriage to a woman. But change the employee’s sex to a woman, and her marriage to a woman inspires discrimination. Likewise, if a transgender woman had been classified as “female” at birth, no one would object to the fact that she identifies as a woman.
Rather than grapple with these arguments, the early cases were distracted by prejudices. Consider the 1977 case, Holloway vs. Arthur Andersen. When Ramona Holloway started working for the accounting firm in 1969, she identified as a man. Holloway was good at her job, but when she began to wear feminine attire at work, her coworkers got upset. After Holloway asked that her first name be changed to “Ramona” in the company records, she was fired.
A federal appeals court was not sympathetic to Holloway’s claim. It reasoned that when Congress passed Title VII, it could not have intended to cover “transsexuals as a class.” Yet Holloway had argued that she was a victim of simple sex discrimination — when her employer thought she was man, she received promotions, but as soon as she made clear she was a woman, she was fired.
The court noted that some psychiatrists thought the desire for a “sex change” was “a sign of severe psychopathology.” It cited a study stating some doctors regarded “transsexuals” to be “immature” and “crippled.” With this background understanding of transgender identity as pathological, the court did not take Holloway’s claim of sex discrimination seriously.
The 1978 case Smith vs. Liberty Mutual Insurance is similarly retrograde. That case was brought by Bennie Smith, a black man turned down for a job as a mail room clerk with Liberty Mutual in 1969 because the interviewer thought that Smith’s interests in singing, dancing and sewing were “effeminate.”
Today, courts would see this as a textbook case of sex stereotyping — a form of discrimination that is “because of sex,” as the Supreme Court made clear in a 1989 case. But in 1978, the lower court deciding Bennie Smith’s case was preoccupied with the question of whether Title VII allows discrimination based on “sexual preference.” Even though Smith did not identify as gay, Liberty Mutual saw his “effeminacy” as a sign of “sexual aberration.”
In the court’s view, “sexual aberration” could not be covered by Title VII, no matter what words the statute used. At the time, homosexuality was considered an illness and same-sex intimacy could be criminal behavior.
In these early cases, background beliefs about LGBTQ people as aberrational, sick and deviant obscured arguments about the statutory text and sex stereotypes. For the next several decades, the holdings of these cases were repeated like mantras, without critical reexamination of their reasoning. These cases do not offer lessons about the original meaning of the statutory text. Instead, they show that courts were not immune from the prejudices of the time.
Today the medical community recognizes that LGBTQ identities are not signs of “severe psychopathology” or “sexual aberration.” With misconceptions cleared away, lower federal courts have been able to see how Title VII’s language and logic applies to LGBTQ workers. The Supreme Court should follow their lead.
Jessica A. Clarke is a professor at Vanderbilt University Law School.