July 30, 2024
OpEd by Joseph Sellers, founder and co-chair of Cohen Milstein’s Civil Rights & Employment practice.
The broad and flexible interpretations of the word “sex” have surely surpassed the expectations of the bill’s authors, and even more so its detractors who added the word itself.
When opponents to Title VII of the Civil Rights Act of 1964, which turns 60 this month, added the word “sex” to the list of protected characteristics, they hoped it would tank the bill. These detractors were certain that this landmark legislation, which would boldly expand the rights and workplace protections of Americans on the basis of race, color, religion and national origin, would surely be doomed if this new and little-discussed form of protection was added. To their chagrin, the bill passed – and in the six decades since, that one word has proven to have a tremendous, positive impact particularly on the lives of women and members of the LGBTQ+ community in unexpected ways.
In 1964, there was virtually no legislative history of what the word “sex” was intended to mean. In fact, it had been added to the Civil Rights Act as an amendment so hastily that there was no serious discussion of how the word should be interpreted. That legacy has permitted the courts, including some members of the Supreme Court who subscribed toa textualist approach to the law, to interpret the word in ways that the legislators who added this protection may not have intended.
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Again, in one of its most significant civil rights decisions of the 21st century, the Supreme Court interpreted the protection against discrimination on the basis of sex in a manner that may not have been envisioned by the Congress that enacted Title VII in 1964. In Bostock v. Clayton County, the Court ruled that Title VII prohibits employment discrimination based on sexual orientation or gender identity. Writing for the majority, Justice Neil Gorsuch explained simply and unequivocally: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
This is the legacy created by the last-minute addition of the protection against discrimination on the basis of sex to Title VII of the Civil Rights Act of 1964. There is little doubt that the proponents of adding “sex” as a protection provided by Title VII did not envision, and likely would not have approved, of the interpretation of this protection provided in the decades that followed its enactment. But, as Justice Scalia explained in Oncale v. Sundowner, “statutory 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.” That singular principle has given rise to protections, likely unforeseen in 1964, to the rights of all Americans across gender identities, gender expressions and sexual orientations to be free from discrimination in the workplace. These broad and flexible interpretations of the word “sex” have surely surpassed the expectations of the bill’s authors, and even more so its detractors who added the word itself.
But today, the continued evolution of the protections against discrimination because of sex, as well as the broad range of other workplace protections, are at risk. The scope and nature of these protections have evolved through the repeated, and sometimes varied and even conflicting, interpretations of these statutory protections accorded the various courts in our judiciary. The path to each of these landmark rulings began at trial courts that applied the law as they interpreted it. These debates about the interpretation of the protection against discrimination because of sex took place in public rulings issued by courts when each considered these issues before they eventually led to the Supreme Court’s landmark rulings. Had the adjudication of these vitally important issues about how to interpret this widely lauded protection occurred in private, rather than public, rulings, the evolution of the interpretation of protections against discrimination because of sex as well as other workplace protections may have been stunted or stymied altogether.