The Supreme Court will hear oral arguments today on behalf of three workers who say they lost their jobs because they are gay or transgender. The court is poised to determine whether LGBTQ workers are covered by Title VII of the Civil Rights Act of 1964, which bans sex discrimination in employment.
It might seem like LGBTQ workers are asking the court to stretch the meaning of a law designed to protect cisgender women. This is what 48 members of Congress and 15 state attorneys general argued in their recent amicus brief to the court, claiming that the concepts of “sex,” “sexual orientation” and “gender identity” “had different meanings” when the law was passed in 1964, and warning the court not to “erroneously … broaden Title VII beyond its congressionally intended scope.”
But Title VII’s ban on sex discrimination has always been ambiguous and flexible. Women and LGBTQ people have long demanded, and government officials have often affirmed, definitions of protected sex equality that encompass identity-based concerns that are far broader than treating men and women interchangeably at work. A ruling against LGBTQ workers, not one in their favor, would represent the real distortion of Title VII’s history and historical meaning.
The ambiguity in Title VII took root even before the Civil Rights Act became law. Its drafters designed the provision to attack racism at work. This was a problem the mainstream civil rights movement defined, and most lawmakers understood, as a matter of stigma and stereotype. Its solution, they argued, was to decenter race as a relevant characteristic in determining who got jobs and promotions and how workers were treated.
The framers of the Civil Rights Act did not initially even intend for gender to be part of the provision. At the time, each state had its own combination of “protective” labor laws that regulated women’s working hours, conditions and pay — meant, in theory, to safeguard their best interests. Women’s advocates and labor unions hotly debated whether a federal law that wiped out these protections would ultimately benefit women.
Many activists, in fact, balked when Rep. Howard Smith, a conservative Virginia Democrat, convinced his fellow lawmakers to add sex to Title VII at the 11th hour, without hearings or debate over its meaning, probably because he hoped this maneuver could kill the act entirely and protect segregation. To his surprise, and that of many others, the law passed with the new provision included.