Second Circuit Threads The Sex Discrimination Needle

The arguments made by the Obama Departments of Educations and Justice, that it was already existing law that sex discrimination under Titles VII and IX covered gender orientation, relied almost entirely on the Supreme Court’s decision in Price Waterhouse v. Hopkins.

But the Obama administration, relying on Supreme Court decisions and other precedents going back several years, has interpreted the statute to include protections for gender identity, and issued guidance to schools to provide accommodations for trans students.

But was there such precedent, or was it merely a claim, relying on a decision that, if viewed through squinted eyes, could kinda, sorta be twisted into precedent?

The decision was, in fact, a relatively straightforward sex discrimination case that happened to involve a trans man, whom the Court discussed as a woman, and concluded that she (not he, not xi, not hir, but she) was discriminated against as a woman because she wasn’t appropriately feminine. The holding was that discrimination against women based on gender stereotypes violated Title VII.

Or to put it into more politically acceptable terms, discrimination against a woman for being too butch was sex discrimination. Not because of the woman was a transgender man, but because the woman wasn’t sufficiently feminine. Is this a distinction without a difference, as transgender and gay advocates argued? Was Price Waterhouse really precedent to prove that law prohibiting sex discrimination already prohibited gender orientation and identity?

The Second Circuit sucked some of the wind out of those sails in Christiansen v. Omnicom.

Such cases misapprehend the nature of our rulings in Simonton and Dawson. While Simonton observed that the gender stereotyping theory articulated in Price Waterhouse “would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine,” 232 F.3d at 38, it acknowledged that, at a minimum, “stereotypically feminine” gay men could pursue a gender stereotyping claim under Title VII (and the same principle would apply to “stereotypically masculine” lesbian women). Simonton and Dawson do not suggest that a “masculine” woman like the plaintiff in Price Waterhouse, 490 U.S. at 235, has an actionable Title VII claim unless she is a lesbian; to the contrary, the sexual orientation of the plaintiff in Price Waterhouse was of no consequence.

In sum, gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.

In other words, it’s not about gender identity or orientation, but about basic sex discrimination. If a woman isn’t sufficiently feminine to meet someone else’s expectations, so what? Whether the woman is lesbian or transgender, or not for that matter, has nothing to do with the claim. It’s of “no consequence.”

You wouldn’t get this out of Mark Joseph Stern’s post at Slate.

On Monday, Chief Judge Robert Katzmann of the 2nd Circuit U.S. Court of Appeals wrote that anti-gay employment discrimination is almost certainly prohibited under existing federal law. Katzmann urged the 2nd Circuit to reconsider precedent holding that employees cannot sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964, citing recent legal developments that support an expansive interpretation of “sex discrimination.” If Katzmann’s court accepts his challenge, the 2nd Circuit will further a growing consensus among the federal judiciary that Title VII already protects gay employees from workplace throughout the country.

Judge Katzmann wrote a concurrence, premised on the “evolving legal landscape” since the precedent that failed to reach his conclusion was decided. It’s entirely understandable that a LGBTQ advocate like Stern preferred to ignore the holding and emphasize the language that serves his cause, but it was less than illuminating. Indeed, some might call it “fake news” in that it conveyed a notably false impression. Even when he mentions, in passing, the holding, he does so without mentioning that the court expressly rejected his preferred interpretation.

And the arguments proffered as to why discrimination based on sexual orientation and identity should be prohibited under Titles VII and IX are forceful, if one-sided. And that would make for an excellent reason for Congress to modify the law to cover, at least to some extent, this discrimination. But that’s not the way the information is being sold to the public.

Judge Katzmann, and Stern, push good reasons to make these protected classes under the law. But that’s not the law now. More to the point, it’s not left to judges to create law that no legislative body enacted. The problem is that Congress has not only been slow in adopting changing social norms that have come to accept LGBTQ and transgender status, but has refused to do so when prompted, and so advocates have found judges far more compliant in redefining law to cover what they wish it would cover.

In a very real way, all of this is understandable, as partisan politics has produced legislative paralysis, and in some less-than-woke states, people keep electing mean old dinosaurs to Congress who get all hinky when it comes to these unpleasant sexual issues. They not only won’t get behind the cutting edge legislation to protect these interests, but they’re downright hostile to them despite how big city folk feel about it. So push the courts to expand words that meant one thing when enacted to mean what you want them to mean now. Problem solved!

To its credit, the Second Circuit resisted the temptation to go one step beyond the existing law to rewrite it in a way that pretty much everybody in New York believes it should be. And given that few would take issue with the court had it done so on a policy basis, the baby step needed to cross the line from law to policy would have been extremely easy. Yet, the court adhered to precedent.

In contrast, Stern’s Slate post reflects what’s become deeply problematic about legal reporting, pushing the agenda with a less-than-honest presentation of the decision or its rationale. Advocacy journalism presented as fact doesn’t illuminate, but deceives and makes people stupider.

This may well be an issue that Congress needs to address, that the American public is primed to support. But using courts to achieve what can’t be obtained through the proper process isn’t the solution. Nor is deceiving readers into believing the law is something it’s not, both in the identity class protected and the propriety of a court manufacturing its own law when Congress has refused to do so.

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