This article appears in the Summer 2019 issue of The American Prospect magazine. Subscribe here.
Few people who are fired for being gay are ever fired because they are gay. This was the case with Donald Zarda, who in 2010 worked as an instructor at Altitude Express, a skydiving company that operated a “drop zone” in Suffolk County, New York.
Zarda made no secret of his sexual orientation at work, which his boss, Ray Maynard, grudgingly tolerated for a while. But Maynard’s underlying assumptions about how men should act surfaced occasionally. “That looks gay,” Maynard told Zarda after he broke his ankle and showed up to work wearing a pink cast. “If you’re going to remain here for the day, you’re going to have to paint that black.” On another occasion, his boss made Zarda cover his painted toenails with socks.
But it was only after a customer complained that Maynard had a pretext to fire him. Before jumping out of the plane, skydiving clients sit on the instructor’s lap, strapped together tightly at the waist and shoulders. To break any tension that might stem from the physical contact, Zarda would often joke with customers. “Don’t worry, I’m gay,” he told one woman, mentioning a recent breakup. Her boyfriend later called to complain, and Maynard fired Zarda for discussing his “personal escapades” with a client.
In its 2019-2020 session, the Supreme Court will decide not whether Maynard fired Zarda for being gay, but whether federal law protects queer people from employment discrimination to begin with. In this first test of the Trump Supreme Court’s temperature on LGBT rights, the justices will hear three cases involving employment discrimination against queer people—Zarda’s, the case of a gay child-welfare worker in Georgia, and that of a transgender woman who was fired from a funeral home after announcing her transition.
Given that same-sex couples can now marry, most Americans assume firing someone for being gay or transgender is already illegal. Polls show 80 percent believe it is, and 72 percent think it should be. But despite repeated attempts by advocates over three decades, Congress has never passed explicit legislation that bars discrimination against LGBT people in employment, housing, or public accommodations.
Since 2015 however, the Equal Employment Opportunity Commission, which enforces workplace nondiscrimination laws, has interpreted Title VII of the 1964 Civil Rights Act’s prohibition on discrimination “because of … sex” to extend to sexual orientation and gender identity as well. This has allowed queer people living in states with no LGBT anti-discrimination protections on the books the ability to sue in federal court.
“A majority [of Americans] live in one of the 30 states that lack nondiscrimination protections for queer people,” says Masen Davis of Freedom for All Americans, an advocacy group that seeks to secure such protections. “[The EEOC’s position] has allowed LGBT people to use sex-discrimination arguments to enjoy at least a floor of legal protection.”
But federal courts have diverged on the question of whether Title VII covers queer people. The Seventh Circuit Court of Appeals and the Second Circuit have ruled that it does. The Eleventh and Fifth have found that it does not. In April, the Supreme Court decided to settle the score.
WHEN THE COURT announced it would take the trio of cases—to be argued and decided in its 2019-2020 session—many in the queer community reacted in horror. “One could sense something like a deep intake of breath, of the sort one makes when a fragile object is starting to tumble off a shelf across the room,” wrote Masha Gessen in The New Yorker. “You know it’s going to shatter, you are too far away to try to catch it, and you watch, helplessly, its interminable path to catastrophe.”
With a conservative majority now on the Court, many queer-rights supporters expect the justices to strip away what few protections LGBT workers have at the federal level, possibly upending decades’ worth of sex-discrimination law.
“It potentially casts a cloud over longstanding bans on sexual harassment and other forms of gender discrimination in the workplace,” wrote Ian Millhiserat ThinkProgress. “In its apparent zeal to legalize discrimination against gay, bi, and trans workers, this Supreme Court could shred many protections long enjoyed by women in the workplace.”
But the doom and gloom among progressives belies the especially strong legal and logical argument for reading protections for queer people into the 1964 Civil Rights Act, which made it unlawful for an employer to “discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin.”
The argument goes like this: Because one cannot define a person’s sexual orientation or gender identity without referring to sex, these characteristics are a function of—linked inextricably to—sex, and therefore covered under Title VII. Put in more concrete terms, if an employer fires a woman because she dates women but does not fire a man who dates women, they are treating the employee differently because of their sex.
“The variable—the item that changes and that produces a different result—is sex,” explains William Eskridge, a professor at Yale Law School who specializes in the study of laws pertaining to sexual and gender minorities. “It’s either the sex of the employee or the sex of the partner.”
The scenario presented above, Eskridge points out, is analogous to that underlying the landmark case Loving v. Virginia, which struck down state anti-miscegenation laws. In Loving, the state of Virginia argued that because the law “equally burdened” blacks and whites—both faced the same punishment for marrying someone of the other race—it did not constitute racial discrimination. One could argue, similarly, that firing someone for being gay does not constitute sex discrimination because neither men nor women are allowed to date someone of the same sex. But in Loving, the Supreme Court rejected this logic, finding that Virginia’s ban on interracial marriage indeed constituted discrimination on the basis of race.
The argument that sex discrimination encompasses gender discrimination is even more straightforward: As with sexual orientation, an employer that fires a transgender person cannot do so without taking their sex into account. This is, by definition, discrimination “because of … sex.”
To some, the argument might come across as a sort of rhetorical legerdemain—a linguistic trickthat redefines “sex” to include sexual orientation and gender identity.
“No one in Congress (or the public, for that matter) even remotely considered the definition to include sexual orientation or gender identity,” wrote Bruce Hausknecht, a legal analyst at The Daily Citizen, a conservative Christian news site. “[Title VII] now must include sexual orientation and gender identity in the meaning of the word ‘sex,’ so the argument goes, for no other reason than because the times have changed.”
Indeed, when it enacted the Civil Rights Act in 1964, Congress could not have imagined Title VII would cover sexual orientation or gender identity. At the time, homosexuality was classified as a disorder by major mental-health organizations, same-sex sex was outlawed—a felony in all but New York and Illinois—and the federal government compiled lists of “sexual psychopaths.” Transgender people, then referred to as “transvestites” or “transsexuals,” were treated with similar contempt.
But none of this should matter to the conservative justices on the Supreme Court, who have each at one point espoused a theory of legal analysis known as “textualism.” As Scalia, its most famous proponent, once said, “It is the law that governs, not the intent of the lawgiver.” Textualists hold that statutes like Title VII should be interpreted according to the words on the page—and their original meaning at the time the legislation was passed—rather than the intent of the drafters or their goal in enacting the law. Most of the legal profession eschews interpreting laws according to their original intent, an approach known as “intentionalism”; lawyers, after all, make bad historians and mind-readers. But none disfavor this tack more than conservatives.
The EEOC’s reading of Title VII to cover sexual orientation and gender identity—and the concurrence of dozens of lower courts—is a textualist interpretation par excellence and thus a test of the conservative majority’s convictions.
“These cases are a challenge for textualists to follow the plain meaning of statutory texts, even if you think this is not what you would do as a legislator, or what you think Congress ought to do, or what you think Congress had intended to do,” Eskridge says. “I would throw down the gauntlet: Is textualism genuinely neutral or is it just a fig leaf for ideology?”
Scalia acknowledged that the meaning of a law can go beyond its drafters’ intent in Oncale v. Sundowner Offshore Services, a 1998 case in which the Court unanimously ruled that Title VII prohibits same-sex sexual harassment: “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.”
It is true that in 1964, the definition of “sex” did not encompass sexual orientation or gender identity—a point the Trump Justice Department has made repeatedly in court briefs opposing anti-discrimination protections for queer people, citing the 1958 dictionary definition. But neither does it today. It is the entire operative phrase “because of … sex” and its logical corollaries that matter here.
Decades of Supreme Court precedent further support an expansive interpretation of Title VII. In 1986, the justices ruled that it forbids sexual harassmentin Meritor Savings Bank v. Vinson. Three years later, in Price Waterhouse v. Hopkins—a case in which a high-performing woman at an accounting firm was denied a promotion because she acted too “masculine”—they found that it also prohibits sex stereotyping, which yields yet another argument in favor of the EEOC’s reading of Title VII.
“At its core, discrimination on the basis of sexual orientation and gender identity is sexual stereotyping,” says Michael Dorf, a law professor at Cornell University. “They’re saying it’s appropriate for you to have certain kinds of sexual attractions based on your sex and not other ones. That’s a stereotype. Or for you to dress in a certain way, for you to act in a certain way. That’s also a sex stereotype.”
Further undermining the idea that the Court should read Title VII as if it were 1964 is the fact that Congress amended it in 1991 to clarify that employers aren’t off the hook even if they had another, nondiscriminatory justification for letting an employee go. By the terms of the amended law, if discrimination is any part of the calculus, employers can still be held to account.
Under no reasonable theory of judicial interpretation, then, should the conservative majority on the Court find that Title VII does not cover sexual orientation and gender identity. That doesn’t mean, given the increasingly right-wing predilections of the Republican justices, that they won’t do it anyway. The proponents of judicial modesty may well take a wrecking ball to decades of nondiscrimination law, as they already have to decades of law protecting voters’ and workers’ rights.
INDEED, THE ERA in which queer-rights supporters could rely on the courts for protections may soon come to an abrupt end. After a string of victories during the Obama era—the repeal of the Defense of Marriage Act and “Don’t Ask, Don’t Tell,” the Court’s enshrining marriage equality, and the enactment of federal hate-crimes legislation—the movement became accustomed to victories. Now, the road ahead may require the state-by-state, gritty organizing that paved the way for marriage equality. Introduced in various forms during every session of Congress since 1994 except the 109th, the Equality Act, which would add sexual orientation and gender identity to the actual text of Title VII and would as well forbid discrimination against queer people in housing and public accommodations, it was passed by the U.S. House of Representatives on May 17, though it stands no chance of passage with Republicans controlling the Senate and the White House.
Which explains what queer-rights organizers are up to right now: trying to pass LGBT anti-discrimination legislation in the 30 states that don’t have it, and educating the public about ongoing—and still perfectly legal—discrimination against queer people in most of the United States.
This article has been updated.