A number of federal courts have begun to ask a question that has become more and more subtle over the past few years: What is the meaning of ‘sex’?
It’s a question that has in many ways evolved out of the storms of cultural change that have surrounded the country’s shifting ideas about human sexuality and gender over the past few decades. Many of these culminated in the US Supreme Court’s landmark 5-to-4 decision in 2015, in which a bare majority declared same-sex marriage a constitutional right.
On the one hand, the high court’s epoch-changing decision that legalized same-sex marriage created the kind of situation that inevitably arises out of rapid cultural change. Today, neither the federal government nor some 28 states offer any explicit civil rights protections for lesbian, gay, bisexual, and transgender people (LGBTQ), either in the workplace or any other arena of daily life.
“It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress,” notes the legal scholar William Eskridge, professor at Yale Law School in New Haven, Conn.
And many throughout the country, even those with liberal-leaning views, continue to be uneasy about the presence of transgender people in certain sensitive places, including school bathrooms and locker rooms.
On Friday, President Trump issued a policy memo that would disqualify most transgender people from serving in the military, after tweeting about his plans to issue such a ban last July. As Defense Secretary Jim Mattis reported to the president in February, the administration is concerned that the presence of transgender soldiers could “undermine readiness,” “disrupt unit cohesion,” and create unreasonable health care costs for the military, echoing arguments used in the past for other groups.
At least four federal courts have found this reasoning constitutionally jarring as well, potentially violating the Constitution’s guarantee of equal protection under the law.
Yet beyond sweeping constitutional questions which regulate what the government can do to its citizens, the nation’s evolving definitions of sex, marriage, and gender have also been quietly transforming the nation’s civil rights laws, which regulate how citizens live their common lives together.
Title VII and Title IX
Indeed, a number of federal courts have recently begun to weigh in on a vigorous and relatively new legal idea, simmering for the past few years in federal civil rights cases but only now beginning to take a more defined legal shape.
There may be no need to press Congress and the majority of state legislatures to change their statutes and explicitly add LGBTQ people to their lists of protected classes. (Traditionally, these include race, color, religion, sex, and national origin.) Existing prohibitions against discrimination “because of sex,” already provide a civil rights umbrella wide enough to cover discrimination based on sexual orientation and transgender identity, some judges are beginning to say.
The Obama administration took this position in 2016, telling the nation’s public schools that transgender students should be able to use the bathroom of their choice, a directive that interpreted Title IX’s prohibitions against sex discrimination as covering transgender identity.
Last April, the US Court of Appeals of the Seventh Circuit in Chicago, which includes nine justices nominated by Republican presidents and five by President Ronald Reagan, also embraced this idea. In an 8-to-3 decision that spanned the panel’s ideological spectrum, the full court ruled that the Title VII’s prohibition against sex discrimination in the workplace also included any based on sexual orientation.
Last month, the Second Circuit in New York issued a similar ruling. “Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” wrote Chief Judge Robert Katzmann for the 10-3 majority. It would be impossible “for an employer to discriminate on the basis of sexual orientation without taking sex into account,” he continued.
Such an evolving legal definition of sex could again reshape the nation’s legal landscape. “Potentially a lot is at stake,” says Professor Eskridge. “Depending how broadly you go, this idea could affect dozens of state statutes and dozens of federal statutes, the chief of which are Title VII and Title IX,” sections in the landmark 1964 Civil Rights Act that forbids discrimination both in the workplace and in public schools.
On the surface, the debate over the meaning of “sex” in these cases divides legal thinkers into classic liberal and conservative approaches to the law. Those who focus on the “original intent” of laws and the precise words of the legal text have generally rejected the expansive lines of thinking about the definition of sex.
“I think the better answer, the cleaner answer is just, let Congress go ahead and change the laws,” says Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory Law School in Atlanta. And there’s virtue in hashing out such questions through a political process rather than letting a panel of judges make such society-shaping decisions.
Indeed, this was part of the reasoning behind a three-judge panel in the 11th Circuit in Atlanta, which came to the opposite conclusion. In a 2-to-1 decision, the majority said that discrimination “because of sex” and discrimination based on sexual orientation were two different things. The disagreement among appeals courts could invite a potential Supreme Court review, scholars say.
But the history of the legal concept of “sex discrimination” unfolded in a much more complex way, many observers note, and conservative jurisprudence, too, has played a key role in the evolving definitions of “sex” that almost immediately began to widen over time.
“There’s been this natural progression of the law,” says Susan Eisenberg, managing partner at the Miami office of Cozen O’Connor. As a trial attorney who has been defending companies from civil rights complaints for more than two decades, she’s has watched as the concept of “sex” in discrimination cases has evolved over time, changing the ways she defends her clients.
The evolution of civil rights law
In the first decade after the passage of the 1964 Civil Rights Act, she and others point out, the “original intent” of the prohibition against sex discrimination was clear. The nation’s elite law schools and medical schools were often reserved for male applicants only, single women could be denied leases and bank accounts, and the nation understood its merit-based workplace as the natural domain of men alone.
But by the 1970s, people began to claim that sexual harassment in the workplace also violated Title VII’s prohibition against sex discrimination, and the Supreme Court agreed, declaring “a hostile work environment” as a violation of Title VII.
By the end of the 1980s, the Supreme Court found that discrimination based on “gender stereotypes” was also a violation of civil rights laws – in this case a woman who was passed up for promotion because she did not act feminine enough.
“She argued: that’s discrimination against me on the basis of my sex,” says Steve Sanders, a professor at Indiana University’s Maurer School of Law in Bloomington. “They’re not discriminating against me as a woman per se, but they’re discriminating against me because I failed to demonstrate certain stereotypes of what it means to be a woman, and the Supreme Court accepted that.”
And the nation’s high court broadened the definition even further in 1998, ruling unanimously that Title VII’s workplace protections covered sexual harassment between members of the same sex – a key decision, says Ms. Eisenberg, citing a passage that in many ways redefined her job.
“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,” wrote Justice Antonin Scalia for the majority in the case Oncale v. Sundowner, explaining the expanding definition of sex in this area of civil rights law.
“The sexual orientation cases that we’re now seeing basically takes the logic of these cases one step further,” says Professor Sanders. “If you’re a man, the social stereotype and the social expectation is that you will want to have sex with a woman, that you will want to have a relationship and a marriage with a woman. But, no, you defy that gender stereotype about what it means to be a man, because you’re attracted to other men.”
“Well, if the idea that men should only be attracted to women and women should only be attracted to men is a form of gender stereotyping, ergo, the logic goes, it’s covered by Title VII,” he says.
The Trump administration, however, maintains that while the Justice Department “is committed to protecting the civil and constitutional rights of all individuals,” in these case it remains “committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided,” said Justice Department spokesman Devin O’Malley in February.
'Lack of clarity can prove expensive'
Corporate attorneys say most businesses have already instituted their own antidiscrimination policies. “But though many have adopted these, only voluntarily, the unevenness, the irregularity of anti-discrimination laws, I think is very challenging for the business community to grapple with,” says Darren Rosenblum, professor at the Elisabeth Haub School of Law at Pace University in New York. “So I think there is an imperative to clarify the law on this point. That’s what they need first and foremost, because the lack of clarity can prove expensive, figuring out which norms to follow.”
Even so, Eisenberg points out that given the ways in which the high court has redefined the meaning of sex in past precedents, today simple claims of “gender stereotyping” already covers most claims of discrimination based on sexual orientation or gender identity.
“And if you’ve got people who are being discriminated against just because they’re not part of a protected characteristic, that’s just not good management,” Eisenberg says. “It’s not good for recruiting, it’s not good for maintaining employees, it’s not good all the way around.”
“That doesn’t mean I wouldn’t try to defend a case on the basis that the claim is not covered, especially since I’m in the 11th Circuit,” says Eisenberg, noting she practices in a jurisdiction that recently ruled that sexual orientation was not covered by Title VII prohibitions.
“But my prediction is, I don’t think that’s going to remain the law for very long,” she says. “But either way, there’s already a workaround for civil rights complaints based on gender stereotypes.”