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Sex, Sexual Orientation, and the Separation of Powers

In three cases to be argued today, the Supreme Court will hear an attempt, encouraged by various amici corporations, professional associations, and other dominant institutions in society, as well as the media, of course, to demand that the Court amend Title VII of the Civil Rights Act of 1964 to include “sexual orientation” as a classification in the workplace. The equally momentous issue before the Court will be when and how the federal judiciary can take over the legislative power and amend federal law

The cases set for oral argument are Zarda v. Altitude Express (2d Cir.), Bostock v. Clayton County, Georgia (11th Cir.), and Harris Funeral Homes v. EEOC (6th Cir.).

Sky-diving, a Funeral Home, and a County

In the Zarda case, a gay sky-diving instructor was fired after a complaint from a woman with whom, strapped together, he had jumped out of an airplane.  She complained that the instructor had touched her inappropriately. The federal district court and a panel of the Second Circuit found that he had failed to prove the link between his firing and “gender stereotypes.”  But the Second Circuit then re-heard the case en banc and decided that “sexual orientation” is a “function” of sex discrimination and is a violation of Title VII; that discrimination based on sexual orientation involves an assumption about which of the sexes a person can be attracted to; and that discrimination based on sexual orientation is “associational discrimination.”

In Harris, a funeral home had a sex-specific dress code for its employees that required men to wear suits and women dresses or skirts. After six years of employment, a male employee told the home that he identified as female and intended to have sex reassignment surgery and wear female attire at work.  The funeral home fired him for his intention to wear female clothing, and prominent in the decision was the owner’s Christian faith.  The employee filed a Title VII complaint with the EEOC.  The 6th Circuit ruled that “sex” included gender-identity, that the funeral home had engaged in sex stereotyping with its dress code because it had denied a professed female the right to dress as a female,  and that the funeral home owner’s free exercise of religion had not been “substantially” burdened.

In Bostock, a gay public employee of a Georgia county was fired for “conduct unbecoming of a county employee,” but he claimed that he was fired because he was openly gay.  The federal district court found that the county had not made its decision based on gender stereotyping, and that sexual orientation was not cognizable under Title VII.  The Eleventh Circuit agreed saying that it had recently re-affirmed a prior decision that sexual orientation was not covered under Title VII.

The Meaning of “sex” in Title VII

Since its enactment into law in the Civil Rights Act of 1964, Title VII has made it “unlawful” for an employer to “discriminate against any individual” because of “such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 2002-2(a)(1).  The wording has never changed in the 54 years since.  Title VII does not define the word “sex.”  The purpose and clear meaning of Title VII is to prohibit employment decisions based solely on whether the employee is either a man or a woman.

The standard rule of statutory construction is that words not defined in statutes are given their every-day meaning at the time of the statute’s enactment.  “Unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979).  (unanimous decision about the definition of the word “bribery”), quoted in Sandifer v. United States Steel Corp. 571 U.S. 220, 227 (2014).  In Sandifer, an unanimous decision of the Court dealing with union working conditions, the dispute was about the definition of workplace “clothes.”

Legislative proposals to include sexual orientation as a protected employment category in Title VII have never succeeded.  As far back as 1974, the flamboyant New York member of the House Bella Abzug – the AOC of her day – introduced legislation to add “sexual orientation” to Title VII.  It failed to make it out of committee in the House.  In the 44 years since, subsequent proposals have not fared any better.  However, earlier this year the Democratic majority in the House broke that string when they passed their Equality Act, an amendment to the Civil Rights Act of 1964, prohibiting discrimination based on sexual orientation and gender identity.  The purported need for such an act might seem itself to be a proof that the Civil Rights Act does not currently include those classifications.  No vote on the Act was taken in the Senate.

In the Civil Rights Act of 1991, Congress passed an amendment to Title VII concerning the terms “job related” and “business necessity.  105 Stat. at 1071.  The amendment included no attempt to define “sex” or add sexual orientation to Title VII.

Completely aside from Title VII, Congress has in recent years legislated about sexual orientation on three restricted occasions. It has established the “hate crime” of causing bodily injury “because of . . . actual or perceived . . . sexual orientation . . . gender identity.” 18 U.S.C. 249(a)(2)(A).  The statute goes on to explicitly define “gender identity” as “actual or perceived gender related characteristics.” (c)(4).  And in a separate statute, Congress has provided federal funding for state, local, and tribal criminal investigations of crimes involving “gender, sexual orientation, gender identity . . .” 34 U.S.C. 30503(a)(1)(C).  And, again, in clearly making a definitional distinction between “sex” and “sexual orientation” in the funding of programs under the Violence Against Women Act, Congress has prohibited the denial of funding on account of “sex, gender identity, sexual orientation.” 34 U.S.C. 12291(b)(13)(A).  That statute makes the same definitional reference for “gender identity” just cited.

By 2017, all eleven of the federal courts of appeal had ruled that Title VII does not include sexual orientation as “sex.” In 2017, the Seventh Circuit reversed itself, and the Second Circuit has done so in the present Zarda case in the Court.

In Frontierio v.Richardson, 411 U.S. 677, 686 (1973), the Supreme Court ruled unconstitutional an Air Force policy that distinguished among husband and wife dependents.  The Court said that the policy’s “dissimilar treatment for men and women” had created a disability about which men and women had no control, for “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”

Simply as a matter of fact, all federal and state laws having anything to do with sex are based on that immutable, fixed meaning.  For, how could such laws be administered or litigated upon if both the subject and object of the laws were in question or constantly in flux?  Nowhere in federal law is there a definition of “sex.” With its “common, ordinary,” understood-by-everyone biological meaning that there are two sexes, male and female, there has never been any reason or need to do so.  Until now.

How to Amend Title VII Anyway

The best means to consider why these three cases are in the Supreme Court now is to consider the Second Circuit’s decision to amend the meaning of “sex” in Zarda,  which in the Supreme Court has been cross-pleaded with Bostock. In the en banc Zarda decision, only six of the sitting thirteen judges joined the majority opinion, four judges filed concurring opinions, and three judges filed separate dissents.

Zarda’s majority opinion attacked the meaning of “sex” in four ways. It decided that the sexual orientation is a “function and subset” of sex. Second, it ruled on the basis of sexual stereotyping, that is, “that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.”  Third, it held that discrimination based on sexual orientation is a form of what it described as  “associational discrimination.”  Fourth, it found that the decades of affirmation and re-affirmation of the common, ordinary meaning of “sex” was not dispositive and could be overcome.

First, the Second Circuit concluded that sexual orientation is a “function” of sex basically because you can’t think of sexual orientation without thinking of sex. That declaration includes the prior assumption, however, that sexual orientation is something to think about as a legal matter in an employment decision under Title VII.  If it is not, then the “functional” connection is irrelevant.  The Circuit purports to make the definition of “sexual orientation” in Black’s Law Dictionary  – to wit, “sexual activity or behavior” concerning “heterosexuality, homosexuality, or bisexuality” – of authoritative relevance, as if it were citing some ancient, technical term from the common law. In truth, there can be no authoritative definition of sexual orientation because it is not only new as a legal term but as a term in society as well. And how does homosexual or bisexual “activity or behavior” define or limit the term “sexual orientation? What are those behaviors and activities? “Sex” in the statute refers to the two sexes, male and female, not to their alleged orientations. A Title VII civil-rights lawsuit needs only to allege discrimination based on either of the two sexes, orientations notwithstanding.

The Second Circuit attempts to use the decision of the Supreme Court in Oncale v. Sundowner, 523 U.S. 75 (1998), a case that is referenced in all the briefs of the three cases, to attempt to show that the Court has already broadened the scope of Title VII to include different “forms” of discrimination.  In Oncale, a man charged that he had been sexually harassed by male co-workers.  The Supreme Court held that such harassment is a means by which sex discrimination can occur.  But the central holding of Oncale was that Title VII “protects men as well as women” and “the critical issue is whether member of one sex are exposed to disadvantageous terms or conditions of employment to which member of the other sex are not exposed.” At 78, 80 (quoting Harris v. Forklift Systems, 510 U.S. 17 (1993).  Oncale was not about the “forms” or subjects of discrimination but about the means by which it can be carried out.

Second, the Circuit concluded that sexual orientation is a “subset” of sex because it is rooted in “stereotypes about men and women.” But such stereotypes are not the concern of Title VII which by its key word is limited to unlawful employment “practice.”  It really does not matter what stereotypes about men or women an employer holds as long as he treats men and women equally.  And it can hardly be denied that “stereotypes” are by definition subjective. A law based on stereotypes? In addition, inquiring into so-called stereotypes – which obviously can include moral and religious views about men, women, and sexuality – carries the risk of governmental policing of those views.

Third, the Second Circuit said that sexual orientation is a subset of sex when looked at “through the lens of associational discrimination.”  The Circuit attempted to make a comparison to a few cases whereby an employee had been subjected to racial discrimination because a member of his family was of a different race.  But in such cases, the word ‘race” was not being defined.  And the discrimination, again, occurred in the workplace.  It was not based on some outside relationship.  And regardless of what associations employees are engaged in outside of work, it is only a Title VII issue if an employer treats such-associated men different from such-associated women.

Fourth and finally, the Second Circuit was not impressed with the legislative history and refrain-from-legislation history of Title VII.  The Circuit said that it was not sure whether “Congress was aware of, much less relied upon, the handful of Title VII cases discussing sexual discrimination” when it amended Title VII in 1991.  This is despite the fact that, as various briefs in the three cases show, that four of the federal circuits had already ruled by 1991 that sexual orientation was not included in the definition of sex.  Concerning the fact that Congress has used the phrase “sexual orientation” in other statutes, like the hate-crime statute described above, the Circuit responded that “when drafting separate statutes, Congress is far less likely to use terms consistently,” thereby overlooking the reality that Congress has not used the phrase “sexual orientation” at all with respect to Title VII, so there is no “consistency comparison” possible concerning that statute.

Amici Briefs Sending a Message

A host of elite society-controlling institutions have filed briefs indicating their approval of amending Title VII. Major American  corporations, 206 of them, have joined together to lobby and indicate to the Supreme Court that amending Title VII will have a beneficial economic impact.  Their number includes such glamorous corporations as Amazon, Nike, Apple, Facebook, Microsoft, and the  San Francisco Giants.  In another supporting brief, 81 “professors of philosophy” have helpfully defined the “social meaning” of sex.  Also filing in support of amending the law are the American Medical Association, American Psychological Association, American Bar Association, and National Education Association.

Numerous educational and religious organizations have filed briefs defending the biological basis of sex. Defending the uniqueness of womanhood in their brief, the feminist organization, Women’s Liberation Front, has filed a brief in the Harris case in which it contends that “Legally redefining ‘female’  as anyone who claims to be female results in the erasure of female people as a class. If, as a matter of law, anyone can be a woman, then no one is a woman.”

As for the interest of those who actually legislate, 39 of the 45 Democratic Senators, including presidential candidates Cory Booker, Kirsten Gillibrand, Kamala Harris, Amy Klobuchar, Bernie Sanders, and Elizabeth Warren, have together and with 114 Democrat members of the House, filed a brief in favor of amending Title VII.  Only eight of the 53 Republican senators, along with only 40 Republican members of the House, filed a brief against. Twenty-one states and the District of Columbia have filed in favor of sexual orientation, while 14 states have filed against.

The Consequences

As stated in the brief by Harris Funeral Homes in the Harris case:

By replacing “sex” with “gender identity” and denouncing sex as a stereotype , the Sixth Circuit [would bring] about a seismic shift in the law.  While “sex” views the status of male and female as an objective fact based in reproductive anatomy and physiology, “gender identity” treats it as a subjective belief determined by internal perceptions without “a fixed external referent.”

As for the constitutional separation of powers, what is being proposed in these three cases that deal with a powerful federal law pervasive in its influence is the takeover by the federal courts of the legislative power.

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