By Kevin Levy, Executive Editor
The 1964 Civil Rights Act broke barriers by providing landmark protections to minorities across all spectrums of American life. The now-renowned Title VII provision forbids employment discrimination on the basis of sex, race, color, national origin, and religion. Notably absent from this list is sexual orientation and gender identity. Homosexual, bisexual, and transgender individuals have had to fight for decades to be included this exhaustive list of protected classes under federal law to varying levels of success. While some have been able to find recourse in various state and local anti-discrimination laws, lesbian, gay, bisexual, and transgender (LGBT) people have been stonewalled (pun heavily intended) at the federal level.
In the late 1980s, the Supreme Court of the United States ruled in Price Waterhouse v. Hopkins that a straight plaintiff’s sexual harassment claim was cognizable under Title VII since her claim was based on the fact that she did not conform to typical “gender stereotypes.” In that case, a female accountant acted “like a man” in order to further her own career interests. The late Justice Brennan wrote that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” All of this lawyer mumbo jumbo essentially boils down to the legal theory that feminine men and masculine women are able to sue their employers for sex discrimination under the Civil Rights Act.
In the years since Price Waterhouse, homosexual plaintiffs have had varying levels of success in federal court suing under Title VII following the gender stereotyping theory. Every single Circuit Court has refused to adopt the theory that homosexual plaintiffs are protected under the theory that one major “gender stereotype” is to have sex with the opposing gender. This would too easily include the entirety of homosexual plaintiffs within the umbrella of gender protections under Title VII (while simultaneously creating a huge gap for transgender employees). The Courts have refused to extend employment protections to LGBT employees for the simple reason that Congress has not authorized it.
And, unfortunately, they’ve made the right decision. The “gender stereotyping” theory has been based on shaky judicial activist grounds for decades. Since at least the late 2000s, the Congress has explicitly refused to extend employment protections under Title VII to LGBT plaintiffs. The Employment Non-Discrimination Act (ENDA) was proposed in Congress by then-Rep. Barney Frank (MA-04), the first openly gay federal legislator in the United States in 2007 in order to make up for this obvious gap in the law. Since then, the law has effectively gone nowhere, reaching its legislative peak in 2013 when it passed in the Senate but was subsequently not considered by the House. With the turnover of the Congress in 2014, the ENDA died and LGBT employment rights were doomed to the nether.
Although the gender stereotyping theory is still effective in courts, it is incredibly difficult to prove. To win, homosexual plaintiffs must show that they were discriminated against because they didn’t live up to traditional gender stereotypes. This strictly excludes gay men who are perceived to be masculine and lesbian women who are perceived to be feminine. Where this leaves bisexual people is up in the air. Transgender protections are even further muddled throughout the courts. In fact, the only way for LGBT people to find protections at the federal level is to maneuver through crafty lawyer tricks to contravene the intentions of the federal government.
It seems rather strange that, in 2017, we continue to fight for civil rights protections for minorities in the United States. Of course, the fight for equality hasn’t yet been won for racial and religious minorities. Since the Civil Rights movement, however, LGBT people have been largely ignored by federal legislators. Most of the major LGBT Rights achievements throughout the past few decades have been delivered by the Supreme Court, not by the legislative process. In Lawrence v. Texas (2003), the Court struck down sodomy laws that criminalized sexual relations between same-sex consenting adults. In U.S v. Windsor (2013), the Court struck down a section of the Defense of Marriage Act that prohibited the federal government from recognizing same-sex marriages and/or civil unions conducted by the states. And in Obergefell v. Hodges (2015), the Court finally recognized that states were required to issue marriage licenses to same-sex couples under the 14th Amendment Equal Protections Clause of the U.S. Constitution.
Rights recognized by the Supreme Court are as surefire as those proposed by the Congress and signed into law by the President. However, the fact that LGBT people have to rely on the unelected judicial branch of government to receive those equal rights is demeaning to the hallowed phrase inscribed on the Supreme Court building in Washington, D.C.: Equal Justice Under the Law.
As a first-year law student, I am tasked with writing a brief defending a corporation charged with sexual harassment by a homosexual male plaintiff. The type of harassment that the plaintiff has alleged in this fictional problem are nothing short of atrocious; the plaintiff has been attacked for showing his face in public with his boyfriend, has been misgendered, and has been humiliated by his coworkers for being a gay man. Although he has been subjected to a terrible working environment, I have worked through over twenty pages and have legally reasoned why he should not be protected by federal law. Why? For the simple reason that sexual orientation is not a protected class under Title VII. And as a gay man writing this assignment, the thing that hurts most is the thought that I can win.
In 2017, it is irreconcilable that LGBT individuals are not protected by federal employment law. LGBT people can serve in the military today due to the repeal of Don’t Ask Don’t Tell in 2010/2011. After the election, then-President-elect Trump referred to the issue of national Marriage Equality as “settled” law (somewhat paradoxically, given that he said that the 50-year-old Roe v. Wade decision was not so settled). Following his Inauguration, President Trump refused to sign a proposed executive order that would have done away with Obama-era protections for LGBT federal contractors. By measurable standards, President Trump has been the most LGBT-friendly Republican politician at the federal level in history (though, he leaves much to be desired).
Even though victories have been handed to LGBT people by the courts, there is still much work to be done. Then-Secretary of State Hillary Clinton proclaimed to the world in Geneva in 2011 that “Gay rights are human rights.” She confronted oppressive anti-LGBT regimes across the globe that criminalized homosexuality, including Saudi Arabia and Nigeria. Although the state of LGBT rights in the United States is better by every metric than in many developing countries, we can and must strive to improve our own record here, domestically.
For as long as there are legal problems, there will be crafty attorneys to try out the most profound and creative legal tactics to circumvent laws as they are written. “Gender stereotyping” is another one of those examples of legal gibberish that has enabled lawyers to fight for equal justice under the law where the legislature has let down the American people. As millennials and moderates, we have certainly come to know more people who identify within the LGBT spectrum than our parents. They are our friends, our brothers, sisters, our Executive Editors (wink, wink), our classmates, and our roommates. According to a recent Gallup poll, more Americans are identifying as LGBT than ever before, up to 7.3% of millennials.
As more LGBT Americans become more readily willing to “come out of the closet” and interact with their peers, friendly feelings towards LGBT rights have been on the rise. Dr. Martin Luther King, Jr. once said that “The arc of the moral universe is long, but it bends towards justice.” For decades, those among us in the LGBT community have fought for the basic right to be treated as equals. We are now on the cusp of equality in the law, and our fellow Americans should act to ensure that basic employment protections are extended to their LGBT compatriots. Although it has not yet been introduced in the 115th Congress, Americans should rally behind the Equality Act that will extend employment protections to LGBT people when it is. Republicans like Senators John McCain, Pat Toomey, and Lisa Murkowski were able to endorse this proposition in 2013. Their example should shine Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan to once again consider the Equality Act/ENDA and extend federal protections to LGBT people. President Trump considered himself one of the most pro-LGBT politicians in the country when he spoke about protecting LGBT individuals at the Republican National Convention last summer. This may be the time for the LGBT community to push for equality laws, and we most not squander the opportunity while it presents itself. Regardless of party affiliation, we must coalesce behind the ideal of equality, regardless of sexual orientation or gender identity.