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Gender Is More Than Just Anatomy

ADA Sign Depot

May 16, 2016

ADA Sign DepotGender Is More Than Just Anatomy

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Source: NY Times
By GILLIAN THOMAS May 13, 2016

THE showdown between the Justice Department and North Carolina officials over a new state law restricting bathroom access for transgender people has brought a question into sharp relief: Does Title VII of the Civil Rights Act of 1964, which bars discrimination because of sex, also prohibit discrimination because of gender identity?

The Obama administration thinks so, as do several district and circuit courts. But North Carolina officials call that a “baseless and blatant overreach” and a “radical reinterpretation” of Title VII. They argue that the authors of the law did not have transgender people in mind when they wrote it.

But that position not only misunderstands how legislative interpretation works, it also fails to grasp the historic complexities of Title VII’s sex provision. The provision has always been contested. Since we don’t know much about why Congress enacted it, we have to look at how courts have interpreted it over the years — and they have constantly expanded its meaning.

In the original bill, Title VII prohibited on-the-job discrimination only on the basis of race, color, national origin and religion. But shortly before it passed the House, Representative Howard Smith of Virginia added “sex” — perhaps as a poison pill, or to protect white women as well as black women. In any case, because the amendment was made during floor debate, we have almost no record of what representatives were thinking when they voted on it.

Once the act passed, it was largely up to courts to interpret the sex provision. At the beginning, the most blatant barriers fell — for example, rejecting employers’ attempts to limit certain jobs only to women (flight attendant) or only men (switchman for a telephone company).

Over the years, the courts deepened and broadened their interpretation of sex discrimination. In the Supreme Court’s first Title VII case, in 1971, the justices unanimously ruled against a defense contractor that refused to hire mothers of small children, but not fathers, because it considered them less committed to the job. In 1977, it rejected Alabama’s height and weight requirements for prison guard applicants, a policy that screened out most women.

The next year, the court ruled against the Los Angeles Department of Water and Power, which required female workers to pay nearly 15 percent more of their paychecks into an employee-funded pension plan, because women, as a group, outlived men. That ruling has been cited again and again by other courts: Title VII was “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

Other court rulings have recognized myriad forms of sex discrimination that would likely blow Representative Smith’s mind. A gas company that erased women’s seniority while they were on maternity leave, while keeping other leave-takers’ credit intact, was ruled in 1977 to have discriminated because of sex. A few years later, the Supreme Court found an employer’s health plan that provided less extensive care for the wives of male employees than for female employees to be discriminatory.

Sexual harassment, a concept that didn’t even have a name in 1964, was finally acknowledged by the court in a unanimous 1986 decision to be discrimination because of sex. About a decade later, the court expanded Title VII’s coverage of sexual harassment by outlawing same-sex harassment, too. Justice Antonin Scalia wrote the opinion and responded to critics who argued that harassment of men by men was unquestionably not what Congress had in mind when it passed Title VII. He wrote that legal protections “often go beyond the principal evil to cover reasonably comparable evils,” and what matters is the law itself, “rather than the principal concerns of our legislators.”

Ann Hopkins’s successful lawsuit against Price Waterhouse in 1989 became the template on which later gender identity (not to mention sexual orientation) lawsuits have been based. Ms. Hopkins claimed that the accounting firm refused to promote her to partner because she was “macho,” “overcompensated for being a woman” and didn’t look or act stereotypically feminine.

The court ruled, in effect, that punishing a woman for failing to conform to her employer’s notion of “womanhood” was just as discriminatory as treating her poorly because she was a woman. The punishment a transgender person faces for violating sex stereotypes is just as much discrimination because of sex as it was for Ms. Hopkins.

Earlier this week, when Attorney General Loretta Lynch compared today’s bathroom bans on trans employees to “white” and “colored” bathroom signs of the past, she placed trans rights on a historical spectrum.

North Carolina’s supporters don’t get that sex is about more than just anatomy. It also includes family roles, romantic desires, cultural expectations and ideas of masculinity and femininity. The courts get that. In its fight with North Carolina, the Justice Department asks for something quite simple: that Title VII be allowed to mean what it says.

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