April 23, 2019
LGBT activists want “sexual orientation” and “gender identity” (“SOGI”) to be protected categories in federal non-discrimination laws. They have been using a two-pronged attack to try to achieve this goal—working through both Congress and the courts.
In Congress, they are pushing a sweeping bill that would add sexual orientation and gender identity to virtually every federal civil rights law. But in the courts (and some quasi-independent agencies like the Equal Employment Opportunity Commission), they have promoted the idea that federal law already outlaws SOGI employment discrimination. The theory is that discrimination based on “sexual orientation” and “gender identity” is actually a form of discrimination based on “sex”—which was outlawed in the Civil Rights Act of 1964. (Note that these two approaches are in some ways contradictory—if the judicial theory is correct, then the Equality Act is largely superfluous.)
The latter of these two approaches has now taken a huge step closer to resolution. On April 22, the U.S. Supreme Court agreed to take up three cases addressing the SOGI issue (these cases will be heard in fall of 2019).
In two of the cases (Bostock v. Clayton County and Altitude Express v. Zarda), the Court will decide the “SO” question—whether discrimination against an employee due to “sexual orientation” is included in the prohibition on discrimination “because of . . . sex” contained in the Title VII of the Civil Rights Act of 1964.
In a third case, R.G. & G.R. Harris Funeral Home v. EEOC, the Court will decide the “GI” question—whether Title VII’s prohibition on discrimination “because of . . . sex” includes a prohibition on discrimination against transgender people based on (1) their status as transgender or (2) the “sex stereotyping” theory derived from Price Waterhouse v. Hopkins (“sex stereotyping” initially meant one couldn’t discriminate against, for instance, a man for wearing pants that looked feminine—but has now been used to claim one could not discriminate against a man for wanting to identify as a woman).
When Congress prohibited employment discrimination based on “sex” in the Civil Rights Act of 1964, both their intention and the plain meaning of the word indicated that they were prohibiting discrimination against an individual because the person is biologically male or biologically female. The Supreme Court should decline the invitation to radically re-write the statute by expanding its meaning to cover “sexual orientation” and “gender identity.” Even Justice Ruth Bader Ginsburg, writing years ago about sex nondiscrimination protections in the Equal Rights Amendment, refused to countenance the idea that they would do away with simple male/female distinctions in the context of bathrooms.
The failure of LGBT activists to achieve their goals through the democratic process is no excuse to simply bypass that process and obtain their goal by judicial fiat instead.
FRC believes that SOGI laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous (like race and sex), or in the U.S. Constitution (like religion). We also believe such laws pose a threat to religious liberty in many situations, as was an issue in the Harris case that the Court will hear.
At the end of the day, the core issue before the Court in these cases is whether it is within the legitimate power of judges to suddenly rewrite a 55-year-old statute. The answer is no.