October 08, 2019

It’s Not About What SHOULD Be

On October 8, 2019, U.S. Supreme Court (SCOTUS, the Court) heard oral arguments positing whether the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and/or gender identity.  The Court does not have the authority to create law. Its job is to interpret the law. The Justices must try to determine Congress’ intended meaning of “sex” when it passed the law in 1964. So, how will they do that? They must try to stand in the shoes (and minds) of their predecessors.

In 1964, a state had the power to criminalize homosexual conduct. It was not until 2003 that the Court ruled such laws unconstitutional. So, would Congress have intended in 1964 to simultaneously provide legal protection against discrimination in employment based on an individual’s sexual orientation?

As originally drafted, Title VII did not include sex. That one word was added while the bill was under debate on the floor.  Scholarly reports can be found here and there.  Some scholars report that the one-word amendment was a ploy intended to thwart the passage of the bill. Others report that the bill’s sponsor, who opposed the Civil Rights bill generally, wanted to protect white women from discrimination in favor of black women, since race was included in the bill.  The research seems void of any Congressional history that reveals conversations, debates or testimony alluding to an intent to prohibit discrimination based on sexual orientation or gender identity.

This issue is not new.  In 1974, the first piece of legislation, The Equality Act was introduced before Congress to amend Title VII to include sexual orientation (as well as marital status). In 40+ decades, Congress has been unable to make it happen. Today, we have the Equality Act (H.R. 5) pending before Congress, which proposes to add both sexual orientation and gender identity to Title VII. The bill was passed in the House on May 17, 2019 by a vote of 236 – 173. It now rests in the Senate Judiciary Committee.

So, however this plays out, let cooler heads prevail.  If sexual orientation and/or gender identity should be protected under Title VII, then we should advocate. Look to our Representatives and Senators to change the law, not the U.S. Supreme Court.