Congress’ Sexual Preference

It doesn’t. It never did. It should, but you wouldn’t know that unless you were one of the few people who paid attention to things like law before evil descended on the land. The headline could just have easily read, Generalissimo Francisco Franco is still dead.

The Justice Department has filed court papers arguing that a major federal civil rights law does not protect employees from discrimination based on sexual orientation, taking a stand against a decision reached under President Barack Obama.

This would be outrageous, but for one thing. Title VII of the Civil Rights Act of 1964 does not include homosexuality as a protected class, and Congress has voted annually since 1974 not to amend it to do so. On the bright side, if they had, it would have been characterized as “sexual preference,” as the nation was not yet woke to the belief that sexual orientation was an immutable characteristic.

The cry is that Darth Cheeto’s beleaguered minion is gratuitously pushing his way into the Second Circuit to exert influence on a case between two private parties, where the EEOC has been invited to chime in.

This latest blow to civil rights by the Trump administration comes at a moment of tremendous promise: The Second Circuit appears poised to expand protections for lesbian and gay workers under Title VII of the 1964 Civil Rights Act, the federal law that bars on-the-job discrimination on the basis of sex, race, color, national origin and religion.

“Appears poised” presumes the Circuit’s decision, as advocates believe the stars have aligned for the courts to do what Congress has refused to do. The Seventh Circuit’s Hively decision cracked the wall of precedent that held sexual orientation was not covered by Title VII, though the argument is that the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins (holding that discrimination based on gender stereotypes in appearance violates Title VII) already did so. If this were true, of course, there would be no issue. It’s not.

But isn’t the EEOC there to speak for the United States?

In 2015, the Equal Employment Opportunity Commission, under Mr. Obama, issued a contrary ruling, deciding on a vote of three Democrats to two Republicans that discrimination on the basis of sexual orientation was illegal. That ruling, which was reviewed by the Obama administration’s Justice Department, did not formally bind the federal courts, although courts often defer to federal agencies when they interpret laws that come under their jurisdiction.

And Attorney General Holder supported this view. Sessions does not. For the purpose of the Second Circuit’s case, in which gay rights advocates seek a reversal of law, the attorney general is sticking his nose in so that two private parties plus an EEOC controlled by the prior administration’s appointees don’t create law that exists only in one of 11 circuits.

If that happens, it creates circuit precedent about a federal law without the federal government’s input. This is true whether you love or hate what the DoJ has to say, that it’s not up to the courts to amend a law that Congress affirmatively refuses to change. The Hively court’s revision of Title VII’s prohibition on sex discrimination circumvented this with a cool slogan.

That’s because “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,’ ” as the Chicago court put it.

Not only is that not how law works, but then, our attention span was longer in 1964. After all, change bestiality to “interspecies sexuality” and the argument holds.

But just as this isn’t some shift in law, it also deflects attention from the core problem: why does Congress refuse, year after year, to amend the Civil Rights Act to make sexual orientation a protected classification? It seems so obviously right. After all, do you want there to be discrimination against someone based upon their sexual orientation?

While some troglodytes do, even some who find discrimination based upon sexual orientation reprehensible are still sufficiently principled to see a problem here. The original classifications protected by Congress were based on what was deemed in 1964 to be objectively observable immutable characteristics: “race, color, religion, sex, or national origin.” The law included exceptions, such as a “bona fide occupational qualification,” as a relief valve for instances where it didn’t work, such as a job where women lack the upper body strength to perform a job. Was that merely a remnant of bias? Perhaps, but that was what was needed to get the law enacted.

The problem with expanding the scope of protected classifications, aside from it being Congress’ job to pass laws and not the courts’, is that it not only prohibits firing employees for marrying a person of the “wrong” gender, as is their right under Obergefell v. Hodges, but a panoply of other rights and causes of action as well. The shift begets conflicts that advocates fail to address or speak about, but which will swiftly make compliance difficult, if not impossible.

Every person with a claim to marginalization, which includes everyone but white heterosexual males, would be in constant conflict for workplace supremacy. Adding to the problems, any person can claim sexual orientation when it serves their interest. How does one test it? Skin color is obvious. Is sexual orientation obvious, or do we take claimants’ word? Is there a test for it? Must they fill out an application stating whom a potential employee has sex with? Do we really want employers to go there?

There are a plethora of issues surrounding these shifts. And once we divorce Title VII from immutable characteristics, where does it end? After all, isn’t intelligence just cognitive privilege? Why should stupid people suffer discrimination when it’s not their fault they were born that way? The point isn’t that we should not embrace a prohibition against discrimination based upon sexual orientation, but that doing so should include the many issues that we know will arise, the conflicts that are certain to happen, the relative rights of everyone.

If courts throw open the door that Congress chose to shut, the euphoria at ending sexual orientation discrimination will swiftly give way to untenable demands and claims, with no rational basis to sort out the conflicting demands by people telling their sad stories. So you truly believe that discrimination based on sexual orientation must end? Me too. But the answer won’t be found in a courtroom and while Jeff Sessions should be blamed for a great many idiotic policies, this is not one.

This is what Congress exists to address. Deal with it, Congress. You are to blame.

16 thoughts on “Congress’ Sexual Preference

  1. B. McLeod

    Beyond the issue of what is “immutable” Title VII’s originators likely would not have considered “sexually orientation” even a detectible “status.” Although this has undoubtedly become lost in the past, there was a time when people could ride the subway and go through the entire work day without having to share, with every other commuter and co-worker, all of the intimate details of who or what they were having sex with that week at home.

      1. Richard

        But its not just a matter of keeping one’s sex life to oneself. Common daily interactions in a work setting can reveal sexual orientation, without the specific subject ever coming up. An anniversary or other family photograph on the credenza, a brief exchange concerning weekend or vacation plans (“my wife and I are going to the shore for the weekend”), an exchange of “how you met your spouse” stories at an office celebration of an employee’s engagement or wedding or new baby or pregnancy stories with a new office parent. Such interactions don’t happen in all workplaces, but they are common in many.

        1. SHG Post author

          That’s true, but not the same issue as what I was addressing. There is a difference between overt demonstrations of sexual orientation for the express purpose of making sure others know (such as what we used to call PDAs, public displays of affection, that were frowned upon regardless of sexual orientation), and the ordinary accouterments of life, such as a family photo on one’s desk.

          Just as a cis person wouldn’t tell someone they just met, “hi, I’m hetero,” why should anyone else? We’re all just people. Isn’t that the point of all this?

  2. B. McLeod

    An LGBT “advocate” explained to me that the publication of their sex lives is fundamental to the “right to be who they are.” Apparently, this entails having to tell everyone about their “status” and then receiving approving messages of acceptance. Without this, they feel they are being unfairly forced to suppress or conceal critical aspects of their true nature just to get along.

    1. SHG Post author

      There are many views that don’t bear up well to scrutiny, which is why you are a hater to question them. Us white guys need to just STFU and be good allies, no matter how asinine the rationalizations may be.

  3. M. Effland

    Unfortunately, Congress provided a built-in justification for the 7th (and possibly the 2nd) Circuit to find sex is not immutable (and therefore subject to judicial expansion). While possibly inconceivable for Congress in 1964 to imagine, an employee’s religion – and the legal obligation to try to accommodate it – is hardly immutable and can change as often as the employee wants. It isn’t difficult to imagine an otherwise inclined court to apply the same flexibility to “sex” as it does to “religion.”

    1. SHG Post author

      You’re right, though as you note, religion was no more viewed as transitory as gender. But it is. The question remains whether Congress’ gaffe on the then-uncontroversial inclusion of religion should be extended or curtailed, particularly in light of Congress’ express refusal to extend it.

  4. PseudonymousKid

    Dear Papa,

    Congress can’t save itself. This mess is the political system you want to save by returning it to the more principled times of 1964? If only we had intellectual honesty and the groundlings in their places, all would be cured. Dems won’t stop trying to push this stuff through the courts just like the Reps wouldn’t stop fighting the ACA. They are both wrong and we are all fucked for it.

    The president is more powerful than ever. Congress is weaker than ever. That’s not a good state for the Union.


    1. SHG Post author

      The open question is what to do about it. We can all agree the current system is dysfunctional, but do we blow it up or try to push the popped springs back into place? I opt for the latter because the former scares the crap out of me. If left to the devices of the mobs (from either side) today, I believe the outcome would be a dystopian fiasco. I’m too much of a humanitarian to want that to happen.

  5. LocoYokel

    Ok, I had to do it. I read the article you linked to in the daily iowan. I thought I had heard it all but I was astounded to realize that people really believe that stuff.

    Cognitive privilege? Really?….

      1. LocoYokel

        Say hi to Harrison Bergeron for me, hopefully I won’t be around to see the endgame.

        1. SHG Post author

          Ever notice that we know nothing about Harrison Bergeron’s gender? Not even Vonnegut had that fertile an imagination.


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