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Document Type

Article

Publication Date

Winter 2020

Publication Citation

95 Indiana Law Journal 227 (2020)

Abstract

As discussed herein, courts and individual judges recognizing or not finding actionable Title VII anti-LGBTQ14 claims have offered different rationales in support of their conflicting positions, including three justifications discussed in this project: (1) the meaning of Title VII’s “because of sex” prohibition, (2) the Supreme Court’s and circuit courts’ construction of the “because of sex” provision in the context of sex stereotyping and gender nonconformity discrimination as applied to the anti- LGBTQ question, and (3) associational discrimination theory. Claim-recognizing jurists have looked to Title VII’s text, Supreme Court and circuit court precedent, and the views of the Equal Employment Opportunity Commission (EEOC) in supporting their position. Those rejecting the argument that Title VII covers anti- LGBTQ discrimination have focused on a posited original public meaning of the statute’s text circa 1964 and relied on circuit court precedents holding that sexual orientation and transgender discrimination claims are not cognizable under the statute. Both sides of the debate are catalogued and critiqued herein.

The discussion proceeds as follows. As a prefatory matter, Part I discusses the last-minute addition of the word “sex” to the list of characteristics protected from discrimination in H.R. 7152, the proposed Civil Rights Act, and the path leading to the sex amendment’s inclusion in the legislation signed into law by President Lyndon B. Johnson on July 2, 1964. Part II examines the Supreme Court’s interpretations of the statute’s “because of sex” prohibition, focusing on the Court’s initial sex discrimination decisions and its subsequent recognition of unenvisaged causes of action for workplace sexual harassment, same-sex sexual harassment, and gender nonconformity discrimination. Part III addresses the question of whether sexualorientation discrimination violates Title VII’s sex discrimination ban and examines the justifications supporting and opposing statutory coverage in Hively, Zarda, and Bostock.

Part IV turns to the separate and distinct issue of transgender discrimination and the Sixth and Fifth Circuits’ contrary holdings in G.R. and R.G. Funeral Homes (recognizing the claim) and Wittmer (foreclosing the claim). Part V concludes that the sexual-orientation-and-transgender-discrimination-is-sex-discrimination position is the better, if not best, interpretation and application of Title VII’s “because of sex” proscription. That view best comports with the language of the sex discrimination provision as construed by the Supreme Court, lower courts, and the EEOC and reflects a jurisprudential approach that does not render invisible significant legal and contextual changes occurring in the half century following the enactment of Title VII.

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