When “sex” discrimination was originally added to the landmark Civil Rights Act of 1964, its introduction reportedly drew a round of howls in the lower chamber of the U.S. Congress. Based on several reports, Representative Howard W. Smith, a Virginia Democrat who opposed the bill, added it as a floor amendment to weaken and potentially kill support for the bill.
The original text of the legislation banned employment based on race, creed, religion, or color. When Smith stood up to offer his amendment, he reportedly drawled, "After the word religion, insert sex," urging his colleagues to right "this grave injustice." According a New York Times reconstruction of the moment, the amendment prompted "laughter from his colleagues, who mockingly offered other suggested additions."
As difficult as it was for many '60s-era lawmakers to embrace the idea that people of color shouldn't live a second class existence in America, the notion that women needed to be defended in the workplace was apparently preposterous.
But the legislation did ultimately pass, sex included, and ever since the mid-aughts that prohibition has increasingly been viewed by federal courts as covering transgender workers from anti-trans bias. But, as I wrote for The Advocate in 2014, the first appeals court ruling to resolutely equate anti-trans bias with sex discrimination came in 2011 in the 11th Circuit Court of Appeals, which covers Florida, Georgia, and Alabama. In Glenn v. Brumby, Vandy Beth Glenn sued after being fired from her job as a legislative editor for the Georgia General Assembly based on her intent to transition.
That federal appeals court decision made the explicit connection that discriminating against transgender workers is a type of discrimination on the basis of not conforming with sex stereotypes. Within several months, the Equal Employment Opportunity Commission, the federal agency that enforces workplace discrimination laws, formalized its view in an unanimous ruling on Macy v. Holder that anti-trans bias in the workplace "is discrimination 'based on. . .sex'" and therefore violates Title VII of the Civil Rights of 1964. The codification by the EEOC, while only legally binding for federal agencies, gave federal courts another point of reference for interpreting the law.
Interestingly, the original expansion of the landmark civil rights legislation to cover LGBTQ workers was pioneered by transgender plaintiffs. Those legal successes were later built upon in further litigation to also cover sexual orientation. The two cases that finally reached the Supreme Court last year were brought by two gay male plaintiffs and a transgender woman, Aimee Stephens, who said she had been fired by her employer after announcing her intent to identify as a woman.
Naturally, the Trump administration sided with the defendants in the case on rejecting both sexual orientation and gender identity as being legitimately covered by the Civil Rights Act of 1964.
"The ordinary meaning of 'sex' is biologically male or female; it does not include sexual orientation," the Justice Department wrote in its brief. "An employer who discriminates against employees in same-sex relationships thus does not violate Title VII as long as it treats men in same-sex relationships the same as women in same-sex relationships."
In other words, as long as an employer discriminates as much against its gay male employees as it does against it lesbian employees, all is right with the world.
The administration similarly argued that the "ordinary public meaning of 'sex' was biological sex" in 1964 and did "not encompass transgender status." The Justice Department also managed to write an entire 110-page brief on the matter in which it entirely omitted pronouns, never once referring to Stephens as "she" or "her."
Pronouns or not, the Supreme Court disagreed on both counts. "An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," Justice Neil Gorsuch wrote for the majority. "Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."
The ruling confounds the Trump administration both legally and politically. Not only did Trump and Co. argue in favor of perpetuating discrimination against LGBTQ Americans and lose, the fact that Gorsuch penned the majority opinion kneecaps one of Trump’s key appeals to religious conservatives—that he’s delivered them the perfect justices to the Supreme Court.
Looks like the last laugh is on Trump.
