Federal courts ask: What is the meaning of 'sex'?
| NEW YORK
A number of federal courts have begun to ask a question that has become more and more subtle over the past few years: What is the meaning of 鈥榮ex鈥�?
It鈥檚 a question that has in many ways evolved out of the storms of cultural change that have surrounded the country鈥檚 shifting ideas about human sexuality and gender over the past few decades. Many of these culminated in the US Supreme Court鈥檚 landmark 5-to-4 decision in 2015, in which a bare majority declared same-sex marriage a constitutional right.
On the one hand, the high court鈥檚 epoch-changing decision that legalized same-sex marriage created the kind of situation that inevitably arises out of rapid cultural change. Today, neither the federal government nor offer any explicit civil rights protections for lesbian, gay, bisexual, and transgender people (LGBTQ), either in the workplace or any other arena of daily life.
鈥淚t is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress,鈥� the legal scholar William Eskridge, professor at Yale Law School in New Haven, Conn.
And many throughout the country, even those with liberal-leaning views, continue to be uneasy about the presence of transgender people in certain sensitive places, including school bathrooms and locker rooms.
On Friday, President Trump issued a that would disqualify most transgender people from serving in the military, after tweeting about his plans to issue such a ban last July. As Defense Secretary Jim Mattis , the administration is concerned that the presence of transgender soldiers could 鈥渄isrupt unit cohesion,鈥� and create unreasonable health care costs for the military, for other groups.
have found this reasoning constitutionally jarring as well, potentially violating the Constitution鈥檚 guarantee of equal protection under the law.
Yet beyond sweeping constitutional questions which regulate what the government can do to its citizens, the nation鈥檚 evolving definitions of sex, marriage, and gender have also been quietly transforming the nation鈥檚 civil rights laws, which regulate how citizens live their common lives together.
Title VII and Title IX
Indeed, a number of federal courts have recently begun to weigh in on a vigorous and relatively new legal idea, simmering for the past few years in federal civil rights cases but only now beginning to take a more defined legal shape.
There may be no need to press Congress and the majority of state legislatures to change their statutes and explicitly add LGBTQ people to their lists of protected classes. (Traditionally, these include race, color, religion, sex, and national origin.) Existing prohibitions against discrimination 鈥渂ecause of sex,鈥� already provide a civil rights umbrella wide enough to cover discrimination based on sexual orientation and transgender identity, some judges are beginning to say.
The Obama administration took this position in 2016, that transgender students should be able to use the bathroom of their choice, a directive that interpreted Title IX鈥檚 prohibitions against sex discrimination as covering transgender identity.
Last April, the US Court of Appeals of the Seventh Circuit in Chicago, which includes nine justices nominated by Republican presidents and five by President Ronald Reagan, In an 8-to-3 decision that spanned the panel鈥檚 ideological spectrum, the full court ruled that the Title VII鈥檚 prohibition against sex discrimination in the workplace also included any based on sexual orientation.
Last month, . 鈥淪exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one鈥檚 sex in relation to the sex of those to whom one is attracted,鈥� wrote Chief Judge Robert Katzmann for the 10-3 majority. It would be impossible 鈥渇or an employer to discriminate on the basis of sexual orientation without taking sex into account,鈥� he continued.
Such an evolving legal definition of sex could again reshape the nation鈥檚 legal landscape. 鈥淧otentially a lot is at stake,鈥� says Professor Eskridge. 鈥淒epending how broadly you go, this idea could affect dozens of state statutes and dozens of federal statutes, the chief of which are Title VII and Title IX,鈥� sections in the landmark 1964 Civil Rights Act that forbids discrimination both in the workplace and in public schools.
Original intent
On the surface, the debate over the meaning of 鈥渟ex鈥� in these cases divides legal thinkers into classic liberal and conservative approaches to the law. Those who focus on the 鈥渙riginal intent鈥� of laws and the precise words of the legal text have generally rejected the expansive lines of thinking about the definition of sex.
鈥淚 think the better answer, the cleaner answer is just, let Congress go ahead and change the laws,鈥� says Mark Goldfeder, senior fellow at at Emory Law School in Atlanta. And there鈥檚 virtue in hashing out such questions through a political process rather than letting a panel of judges make such society-shaping decisions.
Indeed, this was part of the reasoning behind a three-judge panel in the 11th Circuit in Atlanta, which . In a 2-to-1 decision, the majority said that discrimination 鈥渂ecause of sex鈥� and discrimination based on sexual orientation were two different things. The disagreement among appeals courts could invite a potential Supreme Court review, scholars say.
But the history of the legal concept of 鈥渟ex discrimination鈥� unfolded in a much more complex way, many observers note, and conservative jurisprudence, too, has played a key role in the evolving definitions of 鈥渟ex鈥� that almost immediately began to widen over time.
鈥淭here鈥檚 been this natural progression of the law,鈥� says Susan Eisenberg, managing partner at the Miami office of Cozen O鈥機onnor. As a trial attorney who has been defending companies from civil rights complaints for more than two decades, she鈥檚 has watched as the concept of 鈥渟ex鈥� in discrimination cases has evolved over time, changing the ways she defends her clients.
The evolution of civil rights law
In the first decade after the passage of the 1964 Civil Rights Act, she and others point out, the 鈥渙riginal intent鈥� of the prohibition against sex discrimination was clear. The nation鈥檚 elite law schools and medical schools were often reserved for male applicants only, single women could be denied leases and bank accounts, and the nation understood its merit-based workplace as the natural domain of men alone.
But by the 1970s, people began to claim that sexual harassment in the workplace also violated Title VII鈥檚 prohibition against sex discrimination, and the Supreme Court agreed, declaring 鈥渁 hostile work environment鈥� as a violation of Title VII.
By the end of the 1980s, the Supreme Court found that discrimination based on 鈥済ender stereotypes鈥� was also a violation of civil rights laws 鈥� in this case a woman who was passed up for promotion because she did not act feminine enough.
鈥淪he argued: that鈥檚 discrimination against me on the basis of my sex,鈥� says Steve Sanders, a at Indiana University鈥檚 Maurer School of Law in Bloomington. 鈥淭hey鈥檙e not discriminating against me as a woman per se, but they鈥檙e discriminating against me because I failed to demonstrate certain stereotypes of what it means to be a woman, and the Supreme Court accepted that.鈥�
And the nation鈥檚 high court broadened the definition even further in 1998, ruling unanimously that Title VII鈥檚 workplace protections covered sexual harassment between members of the same sex 鈥� a key decision, says Ms. Eisenberg, citing a passage that in many ways redefined her job.
鈥淪tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,鈥� wrote Justice Antonin Scalia for the majority in the case , explaining the expanding definition of sex in this area of civil rights law.
鈥淭he sexual orientation cases that we鈥檙e now seeing basically takes the logic of these cases one step further,鈥� says Professor Sanders. 鈥淚f you鈥檙e a man, the social stereotype and the social expectation is that you will want to have sex with a woman, that you will want to have a relationship and a marriage with a woman. But, no, you defy that gender stereotype about what it means to be a man, because you鈥檙e attracted to other men.鈥�
鈥淲ell, if the idea that men should only be attracted to women and women should only be attracted to men is a form of gender stereotyping, ergo, the logic goes, it鈥檚 covered by Title VII,鈥� he says.
The Trump administration, however, maintains that while the Justice Department 鈥渋s committed to protecting the civil and constitutional rights of all individuals,鈥� in these case it remains 鈥渃ommitted to the fundamental principle that the courts cannot expand the law beyond what Congress has provided,鈥� said Justice Department spokesman Devin O鈥橫alley
'Lack of clarity can prove expensive'
Corporate attorneys say most businesses have already instituted their own antidiscrimination policies. 鈥淏ut though many have adopted these, only voluntarily, the unevenness, the irregularity of anti-discrimination laws, I think is very challenging for the business community to grapple with,鈥� says Darren Rosenblum, at the Elisabeth Haub School of Law at Pace University in New York. 鈥淪o I think there is an imperative to clarify the law on this point. That鈥檚 what they need first and foremost, because the lack of clarity can prove expensive, figuring out which norms to follow.鈥�
Even so, Eisenberg points out that given the ways in which the high court has redefined the meaning of sex in past precedents, today simple claims of 鈥済ender stereotyping鈥� already covers most claims of discrimination based on sexual orientation or gender identity.
鈥淎nd if you鈥檝e got people who are being discriminated against just because they鈥檙e not part of a protected characteristic, that鈥檚 just not good management,鈥� Eisenberg says. 鈥淚t鈥檚 not good for recruiting, it鈥檚 not good for maintaining employees, it鈥檚 not good all the way around.鈥�
鈥淭hat doesn鈥檛 mean I wouldn鈥檛 try to defend a case on the basis that the claim is not covered, especially since I鈥檓 in the 11th Circuit,鈥� says Eisenberg, noting she practices in a jurisdiction that recently ruled that sexual orientation was not covered by Title VII prohibitions.
鈥淏ut my prediction is, I don鈥檛 think that鈥檚 going to remain the law for very long,鈥� she says. 鈥淏ut either way, there鈥檚 already a workaround for civil rights complaints based on gender stereotypes.鈥�
