Earlier this week, AP reported that “in a setback for gay rights advocates hoping for an expansion of workplace discrimination protections,” a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled 2-1 that Title VII of the Civil Rights Act, which prohibits workplace discrimination based on a variety of factors including sex, doesn’t protect against workplace discrimination based on sexual orientation.
In 2011, the 11th Circuit ruled that discrimination against a transgender employee did amount to unlawful sex discrimination under Title VII because the individual faced discrimination based on her behavior not conforming to gender stereotypes. In its new ruling, the court clarified that discrimination against an individual who is undergoing a gender transition is based on behavior while discrimination against an employer for being gay or lesbian is based on “status.”
The 11th Circuit ruling follows a decision in which a three-judge panel of the 7th Circuit in Chicago last July upheld a lower court’s dismissal of a similar case trying to extend Title VII to include sexual orientation.
LGBT rights groups had hoped these rulings would go their way and “would mark a significant step forward for gay rights,” the AP reported. And indeed, if the courts had extended Title VII to include sexual orientation it would have avoided the need to pass federal legislation like the overly broad Equality Act, which seeks to amend Title VII to prohibit discrimination based on sexual orientation and gender identity while decreeing that existing Title VII exemptions based on religious belief may not be used as a defense in suits charging anti-LGBT discrimination.
“Sex discrimination” under Title VII was clearly meant to apply to discrimination based on physical sex, so it seems to makes some sense that it could apply to transgender men and women facing discrimination but not to gay men and lesbians. There is only so far you can stretch an existing statute to try to make it do something it was never meant to do (although that doesn’t stop progressives from trying). However, it does mean that transgender people have far more legal protections under federal law than do gay, lesbian and bisexual people.
We were told we couldn’t pass the Employee Non-Discrimination Act (ENDA) with only sexual orientation (which had the votes in Congress) and not gender identity (which did not), and so ENDA fell by the wayside. The Equality Act is a fundraising ploy that has no chance of passing in a Republican congress, and would face opposition from some African-American legislators who don’t want to meddle with the Civil Rights Act if the Democrats again take power.
But I don’t see transgender activists saying they won’t accept their court-provided protections under Title VII because they also don’t extend to LGB folks.
More. From the comments, “Will” writes:
Seems to me if you face discrimination because you’re a man who has sex with men (or desires to), and being sexual with a man is something that is stereotypically female behavior, then why wouldn’t that be discrimination against a gay man for “behavior not conforming to gender stereotypes” as prohibited under Title VII?
Once the courts expanded Title VII to include “gender nonstereotypical behavior”—which was quite a stretch of the statute, and arguably without foundation—I don’t know how they can find that Title VII protections cover trans people but not gays/lesbians.
On reflection, those do seem like good points. Having stretched Title VII so far beyond its original intent, to then say it can be stretched no further seems arbitrary.