- "Sex" is whether you're male or female: The standard legal argument advanced by advocates and the EEOC does not contend that a person's sexual orientation is his "sex." Rather, treating someone differently based on his sexual orientation necessarily entails treating him differently based on his sex (male). To illustrate: if you fire a man who is sexually attracted to men, but not a woman who is sexually attracted to men, then you are treating the former worse for being male.
- Not all forms of sexual orientation discrimination are sex discrimination: The standard legal argument only gets you so far. Sexual orientation discrimination is not sex discrimination at the macro level. For example, if a policy disproportionately excludes women compared with men, that could constitute unlawful sex discrimination even if the employer did not intend to discriminate. However, if a policy disproportionately excludes gay men and lesbians compared with heterosexual men and women, that would not constitute sex discrimination because members of one sex are not being treated better than members of the other sex.
- No one can explain why single-sex bathrooms aren't unlawful: The standard argument is difficult to reconcile with sex-specific dress codes and facilities. Since no one seems up to questioning these practices, the challenge is to explain why it is unlawful not to hire a gay man for being gay, but it is still lawful to allow women, but not men, to wear make-up. Until this issue was raised by the Trump administration, it was essentially ignored. One response is that sex-specific facilities and dress codes do not really treat men worse than women or vice versa, even though they treat the sexes differently. In other words, separate but equal is ok. This is the approach of the Second Circuit in Zarda. In the context of sexual orientation discrimination, that's well and good, but we see the problem when we consider gender identity. If it's ok to prohibit men but not women from wearing make-up, then why is it not ok to prohibit a transgender woman from wearing make-up? In Harris Funeral Homes, the Sixth Circuit recognized the problem with the separate-but-equal approach and refused to adopt it, yet the court said it was ducking the question of sex-specific dress codes. That just can't be. If it's unlawful sex discrimination to prohibit a transgender woman from wearing make-up, then it must follow that it is unlawful to prohibit a non-transgender man from wearing make-up. No one has come up with a satisfactory resolution, but so far, courts have played along.
- Transgender bathroom access is out of reach: If it's lawful to require men and women to use separate bathrooms, is it nonetheless unlawful to require a transgender woman to use the men's room, at least while she still has male genitalia? In Whitaker, the Seventh Circuit thought so, but only because it assumed that gender identity equals sex. As discussed already, the standard argument that sexual orientation or gender identity discrimination is covered as sex discrimination does not interpret the term "sex" to mean anything other than male or female. If a transgender woman is denied access to the women's bathroom, however, she is treated differently from a non-transgender woman, so the discrimination is not based on her status as female. If this is a form of "sex" discrimination, that must be because an individual's gender identity is her sex.
Ultimately, the Supreme Court will have to decide to what extent sexual orientation or gender identity discrimination constitutes "sex" discrimination. To stand any chance of prevailing, LGBT advocates will have to devise a more coherent legal framework.
Update: On Monday, April 22, 2019, the Supreme Court agreed to decide whether Title VII prohibits sexual orientation discrimination or gender identity discrimination. The gender identity case is EEOC v. Harris Funeral Homes. My recent post about that decision is here. The sexual orientation cases are Bostock v. Clayton County Board of Commissioners and Zarda v. Altitude Express. My most recent post about Zarda is here. There's a good chance we won't see decisions until the end of next June, which will be perfect timing for the decisions to be a major issue in the 2020 presidential campaign.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
Update: On Monday, April 22, 2019, the Supreme Court agreed to decide whether Title VII prohibits sexual orientation discrimination or gender identity discrimination. The gender identity case is EEOC v. Harris Funeral Homes. My recent post about that decision is here. The sexual orientation cases are Bostock v. Clayton County Board of Commissioners and Zarda v. Altitude Express. My most recent post about Zarda is here. There's a good chance we won't see decisions until the end of next June, which will be perfect timing for the decisions to be a major issue in the 2020 presidential campaign.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
