The Supreme Court accepted three cases on Monday that will determine whether Title VII of the Civil Rights Act of 1964 guarantees protection from discrimination in the workplace based on gender identity and sexual orientation. The Court should use this as an opportunity to apply protections against sex discrimination to gender identity, but sexual orientation, which is just as essential to support, does not necessarily come within the guarantees of Title VII.
Gender identity is absolutely protected under the law. Discrimination based on transgender identity is inherently motivated by the sex of the employee because it involves their sex at birth, as was upheld by the U.S. Court of Appeals for the Sixth Circuit. But, sexual orientation — although equally as important to protect — is about the gender someone is attracted to more than about their own and might not fall under the protections given in Title VII.
One case the Court plans to review is that of Aimee Stephens, a funeral home employee and transgender woman that was fired for dressing in women’s clothes at work and presenting herself as a woman. When the funeral home owner was asked why he terminated Stephens, he said, “Well, because he was no longer going to represent himself as a man.”
Representation as a man or woman relies on stereotypes alone. Differences in names, hairstyles, wardrobe — the only changes Stephens made — are purely cultural.
Discrimination on the grounds of failure to conform to gender stereotypes is protected in the same way discrimination based on biological differences is. Firing an employee based on the preconceived ways men and women should or shouldn’t dress or behave is undoubtedly related to gender.
The authors of the Civil Rights Act likely did not have transgender employees in mind — as the gender reassignment carried a heavy stigma at the time that led to little research or awareness of the topic. As the Sixth Circuit Court of Appeals stated in their decision, “discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”
Another case that will come before the Court is a skydiving instructor fired for reassuring a customer that complained about being so tightly strapped to him by telling her he was “100 percent gay.”
Sexual orientation, although related, is not the product of an individual’s sex. A transgender woman attracted to other women is as gay as a cisgender man attracted to other men. Sexual orientation is as valid and as necessary to defend from bigotry as gender identity, but it cannot be interpreted under the same terms because of attraction’s reliance on the other person’s gender.
It is the duty of the Supreme Court to review prior court decisions through a constitutional lens, determining how legislation can be interpreted under the current statutes passed by Congress.
The current conservative majority in the Supreme Court is disheartening when considering LGBTQ rights and the sad reality is that their protections may not be upheld in these cases.
Unfortunately, the interpretation of the Civil Rights Act to not include a safeguard for sexual orientation may send a message that the nation is still in a place of inequality. But it would be a stretch to include sexual orientation — and may cost the Court its legitimacy as an objective source of judgment.
There may be justices that wish to stretch the understanding of the Civil Rights Act to include sexual orientation, but it is ultimately the job of Congress, not the Supreme Court, to create laws where they do not exist.
It is essential to promote the rights of the LGBTQ community to life, liberty and the pursuit of happiness, especially in universal experiences such as employment. But the Supreme Court’s decision in these two cases is not the avenue through which those protections can or should be made.
The right to work without harassment or fear of termination for representing yourself as you are should be universal. No gender identity or sexual orientation makes a person less capable or equal — a concept that unfortunately must be included in legislation in order to uphold its legitimacy.
The cases here showcase the intricacies of these concepts, but also their importance. The Court may not be able to explicitly protect both gender identity and sexual orientation in this context, but it can and should provide motivation for legislation that promotes the equality of people from all backgrounds and identities.