‘Sex’ at the Supreme Court

Aimee Stephens was a successful funeral director for R.G. and G.R. Harris Funeral Homes in Michigan for nearly six years, appearing as a man and using the name she was given at birth, until she informed her employer in 2013 that she was transgender and would begin living as a woman. He promptly fired her, explaining that he believes “a male should look like a…man, and a woman should look like a woman.” Donald Zarda taught skydiving for fifteen years but was fired by Altitude Express on Long Island in 2010 when a female customer complained that he had told her he was gay to make her feel less anxious about being strapped together with him during a tandem skydive. Gerald Bostock lost his job as an advocate for children in a Georgia juvenile court in 2013 when his employers learned that he was playing in a gay softball league. All three filed suit alleging that their employers had discriminated against them.

Being transgender or gay has nothing whatever to do with one’s ability to direct funerals, teach skydiving, or advocate for kids. It is just as unfair to lose one’s job because of one’s sexual orientation or gender identity as it is to lose it because of one’s race or religion. Employment decisions should be made on merit, not group-based characteristics.

But is firing someone for being gay or transgender illegal under Title VII of the Civil Rights Act of 1964, which bars employers from discriminating “because of…race, color, religion, sex, or national origin”? The Supreme Court will take up that question in October, when it hears arguments in the cases of Stephens, Zarda, and Bostock. (The ACLU, where I am national legal director, represents both Stephens and Zarda; I will be arguing Stephens’s case before the Court. Zarda died in a BASE jumping accident in 2014; his partner and sister have pursued his case.) At issue is whether lesbian, gay, bisexual, and transgender people have a right to be treated equally in the workplace, since discriminating against them is inextricably “because of sex.”

The question has divided lower courts, often along unpredictable lines. Some judges, including some relatively liberal ones, have agreed with the employers in these cases that firing someone because she is transgender or gay is categorically different from firing someone because she is a woman, and therefore is not covered by Title VII’s ban on discrimination “because of sex.” They contend that when Congress in 1964 forbade sex discrimination in employment, legislators surely did not think they were prohibiting discrimination based on sexual orientation or gender identity. At that time, same-sex intimacy was still illegal in many states. The court’s responsibility, they argue, is to apply the statute as Congress intended, not to update it to reflect modern mores. The Trump administration echoes these arguments, having reversed the position taken on the issue by the Obama administration.

But other judges, including some very conservative ones, have agreed with the employees (and the Obama administration) that discrimination on the basis of gender identity or sexual orientation is not categorically different from discrimination on the basis of sex. It is instead a subset of sex discrimination—and therefore is covered by Title VII’s prohibition.

The employees’ argument is straightforward: if Donald Zarda had been a woman, he would not have been fired for being sexually attracted to men. If Aimee Stephens had been assigned a female sex at birth, her employer would not have objected to her living as a woman. Thus they are each being treated differently “because of sex,” even assuming that “sex” refers only to what the employers call “biological sex,” or one’s sex assigned at birth based on anatomical appearance.

In addition, the Supreme Court has for thirty years recognized that sex discrimination encompasses not merely firing a person because she is a woman, but also firing her because she is insufficiently feminine or otherwise does not conform to a sex-based stereotype or generalization. In the 1980s the accounting firm Price Waterhouse passed over Ann Hopkins for a promotion because the company considered her too aggressive; it advised her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” In Price Waterhouse v. Hopkins (1989), the Supreme Court ruled that denying Hopkins a promotion for contravening these sex-based stereotypes was prohibited by Title VII. After all, Price Waterhouse would not have told a male employee that he should walk and talk “more femininely,” so Hopkins was treated differently “because of sex.”

The gender-based stereotypes Harris Funeral Homes used to justify firing Aimee Stephens were no less explicit. The funeral home owner, Thomas Rost, explained that he fired Stephens because she “was no longer going to represent himself as a man [and] wanted to dress as a woman.” (Rost insisted on referring to Stephens as a man, and objected even to using her first name, Aimee, “because he’s a man.”) If Harris Funeral Homes fired a nontransgender employee for being insufficiently masculine, it would be liable under Title VII for the same reason Price Waterhouse was. Because Title VII does not exclude transgender employees from protection against sex discrimination, Stephens should receive the same protection.

More generally, what is the basis for objecting to a transgender woman other than her not conforming to the belief that a person identified as male at birth should live as a man? The notion that people will identify with what some refer to as “biological sex” is a generalization. It is true for many but not all people. Approximately 1.5 million Americans do not identify with the sex they were assigned at birth. To fire Aimee Stephens for being, in her employer’s eyes, insufficiently masculine is no less sex discrimination than denying Ann Hopkins a promotion for being insufficiently feminine.

Neither of the employers in Bostock’s and Zarda’s cases explained their firings in explicitly sex-stereotyping terms. They both deny that they discriminated on the basis of sexual orientation, but argue that even if they had, the statute would not cover it. But what is an objection to an employee being gay other than an objection to his contravening the sex-based stereotype that men should be sexually attracted only to women?

That discrimination on the basis of sexual orientation is a subset of sex discrimination can also be seen by comparing it to discrimination on the basis of interracial marriage. No one doubts that an employer who fired a white employee for having a black spouse, or vice versa, would be discriminating on the basis of race. So, too, firing a man, but not a woman, for having a male partner is discrimination “because of sex.”

The employers and the Trump administration respond that discriminating against employees who are lesbian, gay, bisexual, or transgender is not sex discrimination because it does not disadvantage women or men as such. An employer who refuses to hire gay and lesbian employees will “equally” refuse to hire men and women who are gay or lesbian, and an employer who objects to transgender employees will fire both women and men who are transgender. This shows, they argue, that the basis for the discrimination is not sex, but something else: sexual orientation or gender identity.

But to discriminate against both men and women on the basis of different sex-specific rules is to commit two wrongs, not to make a right. In Zarda’s case, for example, the Trump administration concedes that had Price Waterhouse declined to promote both men who were insufficiently masculine and women who were insufficiently feminine, it would be engaged in two acts of discrimination.

Discrimination on the basis of sexual orientation or gender identity takes exactly the same form. That Harris Funeral Homes would fire a transgender man for contravening stereotypes about women does not excuse its firing of Stephens, a transgender woman, for contravening stereotypes about men. And an employer who fires men for being sexually attracted to men does not negate that discriminatory treatment by also firing women for being sexually attracted to women. In both instances, the employers are discriminating against individual employees of a particular sex for transgressing stereotypes specific to that sex. A transgender man would not be subject to the same stereotype imposed on Aimee Stephens; where she was fired for being insufficiently masculine, the transgender man would be fired for being insufficiently feminine.

Sex-specific stereotypes about both men and women have always been a central feature of sex discrimination. Chief Justice William Rehnquist wrote for the Supreme Court in 2003 that “mutually reinforcing stereotypes create a self-fulfilling cycle of discrimination.” The notion that women should stay at home with their children and men should devote themselves to work constrains both women who want to work and men who want to be primary caregivers. To discriminate against both gay men and lesbian women, or both transgender men and transgender women, is not to treat men and women “equally.” It is rather to enforce different, mutually reinforcing sex-specific stereotypes against men and women, respectively. Rost could not have put it more clearly: “A male should look like a man, and a woman should look like a woman.” That is expressly discrimination “because of sex”—even if it’s also discrimination because of gender identity. So, too, firing Zarda for having sex with men is sex discrimination even if the employer would also fire a female employee for transgressing the parallel but different belief that women should not have sex with women.

What about Congress’s intent? Surely, the employers argue, Congress had no idea that Title VII would lead to these results. But that argument rests on a theory of statutory interpretation that the Court, and especially its conservative members, have rejected. At one time, the Court sought to interpret statutes by divining legislators’ intent. But the prevailing approach today is textualist—the Court should interpret statutes according to their literal language. Justice Antonin Scalia, the most ardent and influential proponent of this approach, invoked it in 1998 in ruling that male-on-male sexual harassment was a form of sex discrimination prohibited by Title VII. Scalia acknowledged that no member of Congress foresaw that a ban on sex discrimination would cover male-on-male sexual harassment, but insisted that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Both the employers and the Trump administration warn that if these practices are deemed to be sex discrimination, all sex-specific workplace distinctions will be doomed, from separate men’s and women’s restrooms to sex-specific dress codes. But the validity of those rules will not be affected by these three Supreme Court cases. All that is at issue in them is whether firing someone for being lesbian, gay, or transgender is “because of sex.”

That is not even in dispute with respect to sex-specific workplace rules. Sex-segregated restrooms and sex-specific dress codes expressly differentiate “because of sex.” But Title VII does not prohibit all sex differentiation. The validity of such rules turns not on whether they are sex-based—of course they are—but on whether they impose discriminatory “terms [and] conditions…of employment,” a different question under the statute. Lower courts have generally upheld dress codes, finding that even though they are based on sex, the distinctions they impose do not sufficiently alter the terms and conditions of employment to violate Title VII. Ruling that discrimination on the basis of sexual orientation or transgender status is sex discrimination will therefore not invalidate all sex-specific rules.

Recognizing that discrimination against transgender people is a form of sex discrimination may require that employers accommodate transgender employees within those sex-specific rules—by allowing them, for example, to follow the dress code associated with their gender identity (as Aimee Stephens was willing to do). Just as employers had to accommodate women in what were previously male-only workplaces, so, too, sex equality demands accommodation of transgender people. But it does not require elimination of all sex-specific rules.

Part of the reason these cases may seem challenging is that it is not uncommon in our culture to think of discrimination on the basis of sex as distinct from discrimination on the basis of sexual orientation or gender identity. The movements that have arisen to insist on equality for women, for gay men and lesbians, and for bisexual and transgender people have distinctive (though overlapping) attributes and histories. But their distinctiveness in some cultural and historical respects does not mean they are legally unrelated. At bottom, they all involve the enforcement of particular sex-specific attitudes about how women and men, respectively, should act, as women and men. To insist that men should love only women, or that those assigned a male sex at birth should identify as men is, literally, to enforce a sex-specific rule. And to fire someone for contravening such a rule is to discriminate “because of sex.”

—September 26, 2019