OVER HALF a century ago, Congress struck a blow for gender equality when it passed the Civil Rights Act of 1964. Title VII of that law, which made it illegal for employers to discriminate “because of sex”, has been interpreted to uphold the rights of women to be hired for a so-called “man’s job”; to get promotions without having to wear make-up or behave “more femininely”; to work in offices where sexual favours are not an implicit job requirement; and not to be passed over for a position because they have young children. The courts have read the law to protect men, too. Sexual harassment of male employees counts as sex-based discrimination even if Congress was not contemplating that particular scourge when drafting the law.
Two more facets of workplace mistreatment, and flashpoints in the culture wars, will come before the Supreme Court in a pair of oral arguments on October 8th. Does Title VII’s prohibition on sex discrimination protect gay and lesbian people from being fired on the basis of their sexual orientation? Does it safeguard transgender workers from similar bias? The briefs for the plaintiffs in Altitude Express, Inc. v Zarda, Bostock v Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v Equal Employment Opportunity Commission are in—and they are persuasive.
Expanding gay rights via an old statute might seem like a stretch for a Supreme Court with a five-justice conservative majority that now lacks Justice Anthony Kennedy, who authored four landmark opinions vindicating the rights of gay and lesbian people. It may be. But the most promising arguments running through four dozen briefs from the plaintiffs and their supporters do not try to push the justices toward any particularly radical ideas. No newfangled rendering of Title VII is necessary to find for the LGBT plaintiffs, the briefs say. Even if the courts stick to the conception of “sex” as anchored by biology and genetics (with no gestures toward social roles or queer theory), the gay and trans workers should win. And the briefs—including the one filed by Ms Stephens’s lawyers—wisely stick to the conservative justices’ favoured method of interpreting statutes: textualism, which considers how a law is written, rather than how its drafters imagined it would be applied. Read more via Economist