Title VII, LGBTQ+ Discrimination, and the Prospect of 'Massive Social Upheaval' By Daniel Tagliarina
On Tuesday October 8th the Supreme Court of the United States heard oral arguments in two cases with remarkably similar questions: Does Title VII of the Civil Rights Act of 1964 protect individuals from employment discrimination on the basis of sexual orientation or gender identity. Title VII prohibits discrimination in employment on the basis of sex. What is not settled, and the reason for the cases, is questions of whether discrimination on the basis of sexual orientation is covered as a form of sex-based discrimination. The same is true for gender identity, which is most relevant for individuals who are transgender.
The Court heard arguments regarding two different gay men who claim they were fired because they were gay, as well as a separate case where an employee was fired after expressing to her employer that she was transgender and would begin to present as a woman.
Photo of Aimee Stephens, a plaintiff in R.G. and G.R. Harris Funeral Homes Inc. v. EEOC (Photo by Michael Reynolds)
The government argues that Title VII does not cover LGBTQ+ individuals, in part, because sex is not the same as sexual orientation. In addition, they argue that Congress, in passing the Civil Rights Act, never intended for “sex” in the law to include protections for sexual orientation and gender identity.
The attorneys defending the rights of their LGBTQ+ clients, however, argue that hiring and firing decisions that are about sexual orientation and gender identity inherently take sex into account. Gay men who are fired for being gay are fired because they are men dating men. Women who date men are not similarly treated, and thus sex is a factor. Similarly, transgender women are fired because they were assigned a male gender at birth, but want to live, and dress, as women. People assigned a female gender at birth are not fired for dressing as women, but those who were assigned male but dress as women are. The argument in both of these cases hinges on the sex of the fired person as being critical to the decision to fire them.
Based on the questions and comments during oral arguments, it appears that the Court is evenly split with Justices Ginsburg, Breyer, Sotomayor, and Kagan arguing sexual orientation and gender identity are included within Title VII, and Chief Justice Roberts, with Justices Thomas, Alito, and Kavanaugh opposed. If these perceptions are accurate, this leaves the deciding vote in both cases in the hands of Justice Gorsuch.
Neil Gorsuch
Throughout questioning in both cases Gorsuch seemed to take seriously claims that sex was a key factor in deciding to fire the LGBTQ+ plaintiffs. Despite this receptivity to the plaintiff’s arguments, at a key moment during oral arguments Gorsuch expressed some reservations. In R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, the case specifically about firing an individual for being transgender, Gorsuch expressed concern over the Court’s role in deciding the full extent of coverage under Title VII. Gorsuch asked, “At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that -- that Congress didn’t think about it…that is more effective -- more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.”
At the heart of Gorsuch’s question lie two main concerns: the role of the judiciary in interpreting laws versus Congress’s role in legislating, on the one hand, and questions over the Court’s role in social change on the other. The first is a matter of judicial interpretation, philosophy, and opinion. The second, however, is an empirical question for which we have reliable scholarship.
Legal scholar Gerald Rosenberg has demonstrated that the Supreme Court is ill-equipped to lead on social change. Moreover, where social change happens, it is not because the Supreme Court gets ahead of public opinion, but rather because public opinion and/or political support from the other branches of government are already in place.
In furthering this basic idea, socio-legal scholars have long maintained that there is a connection between law and society, where social views and practices shape laws, and laws, in turn, shape social views and practices. Law is part of a specific social context, and must be understood within its own context. Thus, social change is a complex process that involves some elite queues—such as a Supreme Court ruling—but also changes among non-elites. This means that an important factor in determining how much “massive social upheaval” would actually be involved in a ruling extending employment protections to LGBTQ+ individuals is to understand where the law and the public are on this issue. That is, what is the contemporary context for law and society on this specific legal issue.
Currently 21 states, plus Washington D.C., offer some degree of legal rights and protections from discrimination on the basis of sexual orientation and gender identity, with one additional state offering such protections for sexual orientation but not gender identity. This suggests that states are moving towards more protections, but, notably, 28 states have no explicit nondiscrimination protections for LGBTQ+ individuals. Thus, the states are largely divided on this issue.
However, the picture is clearer when we turn to public opinion. There has been consistent, stable, bipartisan support for anti-discrimination protections for LGBTQ+ individuals. Approximately 69% of Americans support nondiscrimination protections for LGBTQ+ individuals, with 24% opposing. When looking specifically at transgender nondiscrimination protections, the place where Gorsuch expressed concern over “massive social upheaval,” 62% of Americans have said they have become more supportive of transgender rights over the last five years. When asked about equal employment rights for gays and lesbians, 93% of Americans say they support these rights, with only 5% opposing. This support remains high when Americans are asked about specific occupations rather than about employment more abstractly.
In short, public support is strongly in favor of LGBTQ+ protections from nondiscrimination in employment. While lower specifically for questions related to being transgender, the trends are towards increasing support among almost every demographic group. This support exists across party lines. Thus, society seems poised for accepting legal protections in employment for LGBTQ+ individuals. States are, perhaps, less in line with this, but even here the trend is towards increasing protections. Gorsuch need not fear: society is in no danger of “massive social upheaval” if the Court decides to include sexual orientation and gender identity as protected by Title VII’s language preventing discrimination “because of sex.”
Daniel Tagliarina is Assistant Professor of Government and Politics at Utica College
