Supreme Court's LGBT discrimination decision hinges on the text of the Civil Rights Act

When it comes to both race and gender and gender identity and sexual orientation, we should think back to President Kennedy's words about freedom.
Image: President Lyndon B. Johnson signs the Civil Rights Act as Martin Luther King Jr. looks on at the White House in 1964.
President Lyndon B. Johnson signs the Civil Rights Act as Martin Luther King Jr. looks on at the White House in 1964.Universal History Archive / via Getty Images
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By Jessica Levinson, professor at Loyola Law School

On Tuesday, the U.S. Supreme Court will hear arguments that may ultimately decide whether employees are protected from workplace discrimination because of their gender identity or sexual orientation, and if so, when. These are not constitutional cases — they depend almost entirely on how narrowly or broadly the Supreme Court will interpret the word “sex” in the Civil Rights Act of 1964.

The answer to that question has left conservatives making a liberal argument, and liberals making a conservative one. These cases have created an upside-down world in which liberals are arguing to ignore Congress’ intent when it passed the law, and conservatives are claiming the court should look behind the text.

These cases have created an upside-down world in which liberals are arguing to ignore Congress’ intent when it passed the law, and conservatives are claiming the court should look behind the text.

Sixty years ago, an employer could demote or fire you because you were a woman, a racial minority, or a member of a disfavored religion, and there was no federal law to stop that. But in 1964, Congress passed one of the most consequential federal laws in our country’s history. The year before, President John F. Kennedy proposed a sweeping federal rights law, proclaiming, "This Nation, for all its hopes and all its boasts, will not be fully free until all its citizens are free.” Kennedy thus directly tied our country’s struggle for freedom and independence to the struggle of all citizens for the same.

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President Lyndon B. Johnson pushed, cajoled and strong-armed lawmakers into passing the legislation. A key portion of the law banned discrimination of employees based on race, color, religion, sex or national origin. But the word “sex,” was not originally supposed to be part of the law. Lawmakers did not initially intend to protect women from employment discrimination under the Civil Rights Act. In fact, other parts of the law did not address or protect women.

Gender protections were added in an attempt to kill the bill before it was passed, by Rep. Howard Smith, D-Va. Smith suggested a one-word addition to the law prohibiting employment discrimination – sex. Luckily, Smith’s effort backfired spectacularly, and the Civil Rights Act was more robust than he or others ever intended.

Thanks in part to the misguided mission of Smith and his brethren, here we are in 2019, with the Supreme Court hearing three related cases that will decide what exactly it means to prohibit employment discrimination on the basis of sex.

The three cases will basically ask two questions. First, does the Civil Rights Act of 1964 prohibit discrimination against transgender people (either because they are transgender or because of stereotypes about how people of a certain gender are supposed to act)? And second, does the Civil Rights Act prohibit discrimination based on sexual orientation?

As a matter of policy, LGBT rights should be situated clearly within the larger struggle for civil rights, and discrimination on the basis of gender identity or sexual orientation should be outlawed in every workplace.

In trying to answer to those questions, conservatives and liberals have switched positions. Typically, conservative judges and lawyers adhere to the idea that in determining the meaning of words in a law, you look only at those words. You do not look at the context in which the law was passed, or congressional intent. This is called textualism.

Liberal judges and lawyers, however, generally believe that it is appropriate to look beyond the words of the law and at the history and context around the law. But there was no such thing as sexual orientation protections in the 1960s, when the Civil Rights Act was passed, so “sex” in the history and context of the law was not meant to apply to LGBT Americans.

As a matter of policy, LGBT rights should be situated clearly within the larger struggle for civil rights, and discrimination on the basis of gender identity or sexual orientation should be outlawed in every workplace in our nation. In 1967, the Supreme Court struck down laws that prevented a white person from marrying a black person. In 2015, the Supreme Court struck down laws that prevented a man from marrying a man, or a woman from marrying a woman. Many of the same arguments are recycled to allow discrimination both on the basis of race and sex.

As a matter of legal interpretation, there are arguments on both sides of this question. The outcome of the Supreme Court cases will depend on whether a majority of the court interprets the word “sex” to mean only if you are born male or female, or to include the broader concepts of gender identity and sexual orientation.

But the country need not rely on five members of the Supreme Court to determine whether workers are free from discrimination on the basis of gender identity or sexual orientation. Instead, Congress could and should just insert those four words — “gender identity” and “sexual orientation” — into the Civil Rights Act, where they belong. When it comes to both race and gender and gender identity and sexual orientation, we should think back to Kennedy’s words. Our country is not free if our citizens are not free from discrimination. The same reasoning applies.