ON THE BASIS OF IDENTITY: REDEFINING 'SEX' IN CIVIL RIGHTS LAW AND FAULTY ACCOUNTS OF 'DISCRIMINATION'.

• Author: Anderson, Ryan T.

In October 2019, the Supreme Court heard oral arguments in cases that ask whether Title VII of the Civil Rights Act of 1964, (1) which bans employment discrimination on the basis of sex, among other things, (2) extends to discrimination on the basis of sexual orientation and transgender status. (3) It was an odd legal argument, given that the public meaning of the word "sex" in 1964--and today, for that matter--refers to our status as male or female rather than our sexual attractions, desires, actions, or identities. (4)

Because the original public meaning of the word "sex" did not refer to sexual orientation or gender identity, progressive activists have been trying for the past forty years to get Congress to pass laws that would add "sexual orientation" as a protected class, and have been doing the same for "gender identity" for the past dozen years. (5) Because their attempts to work through the legislative process failed, activists took their arguments to court. And they failed there, too--at least until April 2017. That marked the first time ever that a federal appellate court ruled that the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation. (6) Before that ruling, "all eleven courts of appeals that had addressed the issue" had ruled that "sex" does not mean "sexual orientation." (7) And it was not until March 2018 that, for the first time ever, an appellate court ruled that Title VII banned discrimination based on transgender status. (8)

Of the three cases before the Supreme Court, two involve claims about sexual orientation and the third deals with gender identity. In the two sexual orientation cases, (9) two employees who identify as gay (Donald Zarda and Gerald Bostock) argue they were fired from their jobs because they disclosed their sexual orientation. (10) Their employers deny this, arguing that the employees were fired for job-related misconduct. (11) Regardless of the question of fact, the question of law is whether dismissing someone because of their sexual orientation constitutes sex discrimination. (12) In the gender identity case, (13) the facts are somewhat clearer: A male employee who desired to transition and present at work as a woman (Aimee Stephens) was dismissed from employment as a funeral home director. (14) Stephens argues the dismissal was because of transgender status, which is a form of sex discrimination. (15) The employer, Harris Funeral Homes, argues it was because Stephens would no longer follow the appropriate sex-specific dress code or use the appropriate single-sex bathroom--and thus there was no sex discrimination. (16)

The lawyers for the employees in Zarda and Harris asked the Supreme Court to affirm the novel--indeed, activist--appellate court rulings. (17) Doing so would in effect redefine the term "sex" in the Civil Rights Act and simultaneously require a simplistic account of "discrimination." To see how and why it would entail this, it is worth examining the various arguments they put forth.

The lawyers for the employees and their amici contend that any policy that adverts to sex must discriminate because of sex. (18) Only in this way are they able to give Title VII a scope that for decades no one would have ascribed to it. And in the process, they are forced to rely on confused theories of discrimination and of sex. Over and over, the employees and their amici offer crucially flawed analogies, comparators, and analyses that effectively read the words "discrimination," "disadvantageous," and "comparable terms" out of the law altogether. This distorted reading leads to implausible and costly results that cut against the balance Congress struck in crafting Title VII. This Article aims to clarify the philosophical issues behind that costly distortion.

As the Supreme Court unanimously held in Oncale v. Sundowner Offshore Services, Inc., (19) Title VII requires "neither asexuality nor androgyny." (20) What it requires is equality and neutrality. It forbids double standards for men and women--policies that disfavor at least some individuals of one sex compared with similarly situated members of the other. The Court in Oncale quoted Justice Ginsburg to explain: "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." (21) This reading by Justice Ginsburg, embraced by the unanimous Court, remains valid. Yet the employees and their amici explicitly reject it, as their position requires. The Supreme Court should hold fast to Justice Ginsburg's reading wherein Title VII violations consist of double standards for women and men.

In Price Waterhouse v. Hopkins, (22) the plurality opinion of the Supreme Court observed that under Title VII, sex "must be irrelevant to employment decisions." (23) This requires, as the plurality opinion in Price Waterhouse also said, that sex not be used to create "disparate treatment of men and women." (24) Expanding on this point, Justice O'Connor's concurrence pointed out that an employee's sex may "always 'play a role' in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and about which they may comment in a perfectly neutral and nondiscriminatory fashion." (25) Title VII does not require blindness to sex; it requires "neither asexuality nor androgyny." (26)

Title VII forbids unfairness because of sex. It excludes not just any sex-conscious standards, but double standards. Yet the lawyers for the employees and their amici urge the Court to adopt a theory of sex discrimination that would rule out (as discriminatory) any policies that advert to sex, rather than only those sex-related policies that result in "disparate treatment of men and women," (27) where members of one sex suffer under "disadvantageous terms" that the other does not. (28) Embracing the employees' theory would lead to asexuality and androgyny.

Indeed, adopting the employees' theory would not simply distort the statutory text and flout the Supreme Court's unanimous precedent in Oncale. It would also work serious practical harms--and unsurprisingly so. After all, the Court would be rewriting the law Congress passed but with no opportunity for legislators to add to the definitions, qualifications, and limits they might have included if they had actually decided to address sexual orientation and gender identity. For instance, the employees' position--where any policy that adverts to sex discriminates because of sex--would require either the elimination of all sex-specific programs and facilities or allow access based on an individual's subjective identity rather than their objective biology. That the advocates for this theory are evasive about which of these outcomes is required by their theory is telling. Making its implications explicit would prove decisively that their reading is unsound.

It would also highlight the severe consequences for privacy, safety, and equality. Employers would be prevented from protecting their employees' privacy and would be exposed to significant liability. For example, they would have to cover objectionable medical treatments in their employer-sponsored healthcare plans. And the consequences would not be limited to the employment context: if this new theory of sex and of discrimination is imposed on Title VII, then why not Title IX? Such a reading of sex discrimination would spell the end of girls' and women's athletics, along with private facilities at school. (29)

In short, the lawyers for the employees ask the Supreme Court to rewrite our nation's civil rights laws in a way that would directly undermine one of their main purposes: protecting the equal rights of girls and women. Congress did not legislate such an outcome, and the Court should not usurp Congress's authority by imposing such an extreme policy on the nation. Biology is not bigotry, and the Court should not conclude otherwise. Only Congress, not the Court, can craft policy to address sexual orientation and gender identity-concepts distinct from sex--with attention to all the competing considerations. (30)

1. SEX, SEXUAL ORIENTATION, AND GENDER IDENTITY ARE ANALYTICALLY DISTINCT CONCEPTS

   The lawyers for the employees and their amici seek to bypass Justice Ginsburg's reading of Title VII--embraced unanimously by the Supreme Court in Oncale--by arguing that sex, sexual orientation, and gender identity are analytically inseparable. For instance, Stephens argues "it is impossible to discriminate against a person for being transgender without their sex assigned at birth being a cause of the decision." (31) And amici philosophy professors argue: "If an employer decides to terminate an employee on the basis of same-sex sexual attraction (i.e., a particular sexual orientation) or gender nonconformity (e.g., being transgender), the employer must first presume the employee's specific sex...." (32) None of this is true.

   Harris Homes did not "first presume the employee's specific sex." Rather, every document that Stephens presented during the first six years of employment stated that Stephens was a male. (33) During the entirety of those six years, Stephens abided by the male dress code. (34) It was only when Stephens declared to be a woman and desired to start dressing according to the female dress code that Harris Homes learned that Stephens identified as transgender. (35) Even so, the philosophy professors write:

   It is simply not possible to identify an individual as being attracted to the same sex without knowing or presuming that person s sex. Likewise, it is not possible to identify someone as gender nonconforming (including being transgender) without reference to that person's known or presumed sex and the associated social meanings. (36) But is it really true that individuals cannot be identified as gay or trans "without knowing or...