At the heart of a pending Supreme Court decision, one of the most significant since Obergefell v. Hodges, is whether or not the 1964 Civil Rights Act prohibits discrimination in employment based on sexual orientation and gender identity.
On Tuesday, the Justices heard oral arguments in two cases where plaintiffs claim they were fired because they were gay, and in a third case involving the termination of a biological man who identifies as a woman. They believe, and their attorneys argued, that Title VII of the Civil Rights Act, which prohibits discrimination based on sex, should protect them as well.
They face two significant hurdles. First, sexual orientation and gender identity are not included in the Title VII list of protected classes. Second, Congress has had fifty-five years to amend Title VII to include sexual orientation and gender. But it hasn’t.
Neither of these facts were disputed on Tuesday. In fact, the first question asked—by Ruth Bader Ginsburg no less—was how the plaintiffs “would answer the argument that back in 1964, this could not have been in Congress’s mind because in many states male same-sex relations was a criminal offense; the American Psychiatric Association labeled homosexuality mental illness?”
The plaintiff’s answer was pretty straightforward. The Supreme Court back 1989 ruled that Title VII prohibited discrimination “against a woman who cursed like a sailor, walked like a man, and didn’t wear makeup.” In other words, treating someone differently because they don’t conform to gender stereotypes is discrimination based on sex and violates Title VII.
And, according to the Seventh Circuit Court of Appeals, same-sex attraction and transgenderism are “the ultimate case of failure to conform” to gender stereotypes.
Justice Elena Kagan proposed that the test should be whether a person would have been treated differently if they were a different sex. For example, a woman fired because she dates women would not be fired if she was a man who dates women.
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SOURCE: Christian Post, John Stonestreet and Roberto Rivera