The Civil Rights Act and Sexual-Orientation Discrimination

The Supreme Court will ultimately make this call since there is a split among the appellate courts. But given that until very recently the view that sex discrimination should be interpreted as including sexual-orientation discrimination was, at the very least, viewed as novel makes the assertion by activists that this is yet another “anti-gay” move by the administration (rather than an example of conservative interpretation of the statute’s language) seem a stretch.

If it were so obvious that the Civil Rights Act’s ban on sex-based discrimination extends to sexual-orientation discrimination, why propose The Equality Act (to amend the Civil Rights Act and add sexual orientation) before the matter was decided by the Supreme Court? (Well, perhaps because The Equality Act also guts the Religious Freedom Restoration Act, I suppose.)

4 Comments for “The Civil Rights Act and Sexual-Orientation Discrimination”

  1. posted by Tom Scharbach on

    The Supreme Court will ultimately make this call since there is a split among the appellate courts. But given that until very recently the view that sex discrimination should be interpreted as including sexual-orientation discrimination was, at the very least, viewed as novel makes the assertion by activists that this is yet another “anti-gay” move by the administration (rather than an example of conservative interpretation of the statute’s language) seem a stretch.

    I don’t know why it is considered a stretch to interpret the Trump administration’s intervention in an Appellate Court case by filing a hostile amicus brief arguing that the Civil Rights Act of 1964 cannot be interpreted to ban discrimination based on sexual orientation, reversing the government’s earlier position on the issue, as an “anti-gay” (in the sense of anti-equality”) move by the administration. But if it is a stretch, so be it.

    If it were so obvious that the Civil Rights Act’s ban on sex-based discrimination extends to sexual-orientation discrimination, why propose The Equality Act (to amend the Civil Rights Act and add sexual orientation) before the matter was decided by the Supreme Court?

    For the same reason that gays and lesbians fought to obtain marriage equality legislatively while fighting the battle in the courts: If you two paths, one judicial and one legislative, are open to you, and success is not ensured in either, you pursue both. Why the hell wouldn’t you?

    I think that Stephen’s question goes a long way to explaining why left/liberal gays and lesbians turned the Democratic Party around over the last thirty years, and homocons made no progress at all in the Republican Party. The left/liberals worked, pursuing every possible path to changing the party, and the other did next to nothing, trying to get “a seat at the table” by asking nicely.

    I can just imagine what homocons would have to say about Winston Churchill’s approach to defending England:

    We shall go on to the end, we shall fight in France,
    we shall fight on the seas and oceans,
    we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be,
    we shall fight on the beaches,
    we shall fight on the landing grounds,
    we shall fight in the fields and in the streets,
    we shall fight in the hills;
    we shall never surrender.

    It would run something like: “Why fight on the landing grounds of you have the beaches covered? What’s this about fighting in the fields and the streets? Why not pick one or the other? And the hills? And who wants to climb the hills to fight? That sounds too much like work. Let’s just head over to the pub.”

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  2. posted by Tj 3rd on

    1. My ex boyfriend was very much a libertarian in the 1990s. He got out. He gave me several libertarian books, as well as back issues of Reason and Liberty Unbound. To say that I don’t have these publications, is silly.

    2. Their is a legal argument that anti-gay\anti-trans discrimination is a form of sex discrimination. In America this argument sometimes flies, but not consistently. When dealing with sexual harassment in employment, as an example, the USSC (I think justice scalia) ruled that “sex” applied very broadly.

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  3. posted by Tj 3rd on

    Sometimes the courts have said the sexual harassment laws cover workplace or school harassment of LGBT people. Other courts have said that anti-harassement laws, don’t.

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  4. posted by Tj 3rd on

    So, the American debate about what a law – dealing with sex discrimination or harassment – covers, has been going on for awhile. Beyond the case from 1998, the USSC hasn’t got involved. Federal and State courts have different case law on the debate.

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