Former chairman of the Republican National Committee Ken Mehlman opened fire with both barrels: an amicus brief in the trio of cases coming before the Supreme Court, Zarda, Stephens and Bostock, and an op-ed in the New York Times.
Polls consistently show a high percentage of Americans think that firing people or denying them jobs or promotions because they are L.G.B.T.Q. is wrong and that it should be prohibited under our nation’s civil rights laws. A full 92 percent said so in an April poll by Quinnipiac University. That’s in part because basic protections against job discrimination are fundamental to core American values of fairness.
This isn’t a new idea, or a partisan one. Abraham Lincoln wished for all workers to have an equal chance to acquire property and to gain wealth. “When one starts poor, as most do in the race of life,” he said, “free society is such that he knows he can better his condition.”
Neither of these assertions should be controversial. At the same time, neither has anything to do with Mehlman’s point, that the word “sex” in Title VII of the Civil Rights Act of 1964 should be redefined from male and female to whatever identity a person presents.
Title VII prohibits discrimination based on an individual’s most basic characteristics, including race, “sex” and other factors. Lower courts and agencies have often ruled that discrimination based on who someone loves means discrimination based on sex. If a man is fired for having a picture of his husband at his desk, but the woman beside him with a picture of her husband is not, that’s discrimination based on sex.
Title VII prohibits discrimination on what were deemed to be “immutable characteristics.” The image of a man fired for a photo of his husband on his desk makes Mehlman’s point, as it reflects the ridiculousness of discriminating against a person for his sexual orientation. But the crux of Melman’s brief and op-ed is that he, and his co-signors, aren’t crazed progressives, but Republicans, through and through.
In an amicus brief that will be filed with the court this week, the Republicans make the case that their view about how the law should be interpreted represents “a common sense, textualist approach” — nodding to the school of legal thought on the right that disapproves of judges who go beyond a law’s text when deciding how to apply it.
There is good reason to take a textualist approach to Title VII. The first reason is that the law is of sufficiently recent vintage that it’s absolutely clear what Congress meant by the word “sex” when it was enacted, so if the congressional “intent” rules, Melman’s side loses. The second reason is that Congress has had innumerable opportunities to amend the law to include discrimination against LGBT+ and refused. Every time. If there was any doubt what Congress intended in the first place, they made it clear, over and over.
But if the argument is purely textual, refusing to consider congressional intent as Woke Nino admonished against, then the only question remaining is what does the word “sex” mean?
Courts have come to the same conclusion regarding transgender status. If an employer hires someone it initially perceives to be a woman, but then dismisses that employee for being a transgender woman, that’s also discrimination based on sex. Neither sexual orientation nor transgender identity can be accounted for without considering one’s sex.
The argument here reaches the precipice of disingenuousness. Courts have, indeed, held that discrimination based on gender-stereotyping is sex discrimination, but the Supreme Court has never held that it’s because a person is gay or transgender. Ironically, the argument relies on the binary definition of “sex” as the baseline against which sexual orientation and identity are measured.
What’s missing, however, are the sequelae. In the Zarda case, his homosexuality led to his firing not because he was gay, but because his student was weirded out by the intimate nature of a tandem skydive that he thought it would put her at ease. It didn’t. Whether it was because she didn’t want his manhood pressed against her or his gay manhood pressed against her, Zarda’s attempt to make her feel at ease failed and led to his being fired.
And then there are all the previously discussed issues, having nothing to do with the benign, if not quaint, image of a husband’s picture on a desk. Can an employee be compelled to share her locker room with a genderqueer biological male? Does it change a sexually hostile environment if the person screaming “bitch” at a female employee identifies as nonbinary? If it doesn’t matter to you, does that mean the people to whom it does matter have to suck it up and share a hotel room on a business trip?
Using the benign image makes for a more compelling argument, but doesn’t address the consequences of a Supreme Court ruling that “sex” in Title VII (and, as a by-product, Title IX, because it uses the same word) will lead to a great many issues that will be decided by default, and have been studiously left off our radar in the hope that empathetic people don’t realize that this is a paradigm shift with extreme ramifications.
It would be unfair to call them “unintended consequences,” even though you may not be aware of them. They’re known. They may not necessarily be desired consequences (or they may well be), but they’re consequences advocates are willing to accept for the greater success of accomplishing through litigation what they have failed, over and over, to accomplish through legislation.
But now that the Republicans argue they’re on board with the prohibition against discrimination against gay and transgender people, then the means to correct this impropriety is to change the law, and tailor its application so you don’t get a phone call from your son informing you he’s been expelled from college for refusing to have sex when he found out his date has a penis.
The Supreme Court wields a cudgel, where a ruling can cause a seismic shift in the law by redefining “sex” to mean something entirely different than Congress intended in 1964 without any of the nuance to address the myriad problems that will create societal backlash against gay and transgender people. With Republicans on board, Congress can enact a law with the scalpel necessary to end LGBT+ discrimination without unintentionally sacrificing the competing rights of anyone else. The job belongs to Congress, not SCOTUS.