We discriminate. All of us. All the time. If we didn’t, we would be indiscriminate, and nobody wants to be indiscriminate. Some discrimination, such as discrimination based on race, is unlawful in certain circumstances such as employment. Other types of discrimination is not. We discriminate in the food we prefer to eat, the people with whom we chose to have romantic relationships, the players on our team, who to follow on the twitters.
We discriminate, and there is nothing wrong with discrimination. We are allowed our preferences, except when the law informs us we are not.
In 1964, Congress made an extremely controversial move at the time. It crafted a list of characteristics against which discrimination would be unlawful in employment. Title VII of the Civil Rights Act of 1964 included “race, color, national origin and religion.” These weren’t arbitrary words that someone tossed into a salad, but very deliberately chosen so that employers could not pull some shifty move, find an excuse that would serve to circumvent the law and undermine its purpose, to force a societal shift in our acceptance of racial equality.
You will note that the word sex wasn’t included in the list. Gillian Thomas of the ACLU accurately explains why:
In the original bill, Title VII prohibited on-the-job discrimination only on the basis of race, color, national origin and religion. But shortly before it passed the House, Representative Howard Smith of Virginia added “sex” — perhaps as a poison pill, or to protect white women as well as black women. In any case, because the amendment was made during floor debate, we have almost no record of what representatives were thinking when they voted on it.
The lack of legislative history explaining the inclusion of the word “sex” in Title VII is the basis of what we today call an “exploit,” a tiny crack which some hope to sneak through to impute the meaning they seek to include. While Thomas is right that Congress provided essentially no explanation of what it was trying to do by including the word “sex” in there, that doesn’t mean that the word itself lacked any inherent meaning.
IN 1964, the word sex referred to male and female. It is not to suggest that no such thing as homosexuality, or genital abnormalities, or conflicted gender identity, existed in 1964. It’s that the word “sex” didn’t address these issues. It addressed discrimination against women. And the social justice warriors of the day were fighting a battle for equality between the sexes. The binary sexes.
At the time, that was enough of a war. Had anyone suggested that the word sex related in any way to transgenders, it would have been ludicrous, and women would have been outraged at another group, clearly not included, trying to hijack their battle and horn in on a law from which they were never intended to benefit.
In the decades since passage of Title VII, it has fallen on the courts to determine how it’s to be applied in the myriad circumstances imaginative humans have created. Concepts such as “suspect classifications,” which requires a court to apply strict scrutiny, “bona fide occupational qualification,” which allows an employer to discriminate notwithstanding the law, have been developed to apply Title VII. In the context of sex discrimination, where the issues addressed the binary distinction of male and female, there have been a multitude of decisions trying to figure out how to apply the law in a rational, doctrinally sound way.
The ACLU’s Thomas argues for the exploit:
The Obama administration thinks so, as do several district and circuit courts. But North Carolina officials call that a “baseless and blatant overreach” and a “radical reinterpretation” of Title VII. They argue that the authors of the law did not have transgender people in mind when they wrote it.
But that position not only misunderstands how legislative interpretation works, it also fails to grasp the historic complexities of Title VII’s sex provision. The provision has always been contested. Since we don’t know much about why Congress enacted it, we have to look at how courts have interpreted it over the years — and they have constantly expanded its meaning.
This is not accurate, that the courts have “constantly expanded” it’s meaning, although it might well seem that way. Courts have applied the law to the situations before it. And indeed, what might well be characterized as expansion was still tethered to the original concept of the law. But baby steps being what they are, each ruling applying the law brought it ever-so-slightly farther from its simple core concept.
Other court rulings have recognized myriad forms of sex discrimination that would likely blow Representative Smith’s mind. A gas company that erased women’s seniority while they were on maternity leave, while keeping other leave-takers’ credit intact, was ruled in 1977 to have discriminated because of sex. A few years later, the Supreme Court found an employer’s health plan that provided less extensive care for the wives of male employees than for female employees to be discriminatory.
Sexual harassment, a concept that didn’t even have a name in 1964, was finally acknowledged by the court in a unanimous 1986 decision to be discrimination because of sex. About a decade later, the court expanded Title VII’s coverage of sexual harassment by outlawing same-sex harassment, too. Justice Antonin Scalia wrote the opinion and responded to critics who argued that harassment of men by men was unquestionably not what Congress had in mind when it passed Title VII. He wrote that legal protections “often go beyond the principal evil to cover reasonably comparable evils,” and what matters is the law itself, “rather than the principal concerns of our legislators.”
Putting aside the irony of arguing in favor of the textualist’s position, there remains a question of when a law, based upon its most distant application, is a mere baby step away from application that is no longer tethered to the law itself, but at best its farthest use. Either the attempt to connect it back to the law extends forever, or the connection snaps. It’s pushed a step too far, when there is no longer any connection between the attempted application and the law.
Once the act passed, it was largely up to courts to interpret the sex provision. At the beginning, the most blatant barriers fell — for example, rejecting employers’ attempts to limit certain jobs only to women (flight attendant) or only men (switchman for a telephone company).
Over the years, the courts deepened and broadened their interpretation of sex discrimination.
The courts cannot “deepen and broaden” a law, as that’s beyond their authority. They can only decide whether it applies to the circumstances before it, although courts have violated their own legitimacy from time to time, giving this characterization unfortunate merit.
The current attempt to extend Titles VII and IX from sex discrimination to transgender discrimination is of an entirely different nature, raises entirely different issues. Proponents argue in favor of the extension because they agree with it, which is fine. They denigrate all opposition by tarring it as discriminatory hatred toward transgenders. That’s dishonest, but in a war for one’s social justice agenda, dishonesty is hardly an obstacle. This is war.
Does American want to extent protection against discrimination to transgenders? Maybe. There are a great many issues that never arose under Titles VII and IX before, because gender identity is nothing like skin color. There are a great many tradeoffs involved, new issues never before decided, that will affect a great many people.
Is now the time to open that door, deal with those issues? Perhaps it is. Perhaps it’s not. But just as Congress enacted Title VII back in 1964, having made a decision that the time had come to take action against racial discrimination in employment, it’s up to Congress, and America, to make this decision.
It is not up to Vanita Gupta, Catherine Lhamon, even Loretta Lynch, to decide that now is the time to impose a fundamental restructuring of social norms by unilateral fiat, the power of the purse, and, they hope, a judge who is sufficiently agreeable to take one more baby step, but rather than go in the straight line, take a step to the left.
This isn’t about loving or hating gender identity. It’s not about whether it’s real or not, or should or shouldn’t suffer discrimination. It’s about a decision that Americans need to make, whether this is one of the aspects of humanity that is protected from discrimination. Bear in mind, if discrimination against transgenders becomes unlawful, then the baby steps start anew.
Consider the notion that your child at college refuses to date a transgender person, and becomes the accused in a Title IX action. Should this be part of the good discrimination, the choices to which every person is entitled, or do we give away our individual choice in the name of transitory social justice? These are the issues that could arise. We need to think long and hard before we find ourselves in the position where they do, because our eyes were clouded with the tears of discrimination when we allowed our emotions, our empathy toward transgender folk, to overcome reason and law.