Defining sex-based discrimination among strife between the Justice Department and the EEOC

Why Title VII extends to SOGIE and expression

As far back as 1979, the Supreme Court said that “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” ²² Arguably, a member of the LGBT community and others with nonconforming gender expression would fall under “the entire spectrum.” ²³

This view has been embraced by the EEOC in the past few years. The first instance of the EEOC including SOGIE discrimination under sex discrimination occurred in Macy v. Holder. ²⁴ Here, the complainant was a man at the time that he was offered a position, with the caveat that there be no problems with his background check. ²⁵ The offer of a position was rescinded months later, just 5 days after the complainant informed the Agency that he was in the process of transitioning from male to female. ²⁶ As a result of this case, the EEOC concluded that when an employer discriminates against someone because they are transgender, the employer has disparately treated someone based on their sex. ²⁷ The EEOC cited Price Waterhouse to support its application of sex stereotyping theory to discrimination based on a person’s transgender status. ²⁸ The EEOC later extended this interpretation to SOGIE in their decision in Baldwin v. Department of Transportation. ²⁹ Here, the EEOC concluded that “sexual orientation is inherently a ‘sex-based consideration’, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” ³⁰ The EEOC also updated the guidance on sex discrimination on their website to reflect these determinations. ³¹ There, the EEOC defines “sex discrimination” as “treating someone (an applicant or employee) unfavorably because of that person’s sex” and explicitly includes discrimination based on sexual orientation or transgender status. ³² According to the EEOC, such discrimination violates Title VII. ³³

Now, years later, three cases addressing this issue have been heard by the Supreme Court. Perhaps the most notable case deciding whether Title VII extends to discrimination based on sexual orientation, Zarda v. Altitude Express, involved a skydiving company who allegedly fired an employee after learning that he was gay. ³⁴ Although not a party in the litigation, the EEOC submitted an amicus brief providing their interpretation of Title VII. ³⁵ The EEOC acknowledges that, 17 years prior to the date the EEOC’s brief was filed, the Second Circuit decided in Simonton and Dawson that Title VII did not prohibit discrimination based on sexual orientation. ³⁶ However, the EEOC asserts that Zarda is distinguishable from prior cases before the Second Circuit because Zarda involved impermissible sex-based considerations, so can be classified as “gender-based associational discrimination,” and that Altitude Express relied on sex stereotyping. ³⁷

At its core, sex discrimination treats similarly situated people differently solely based on their respective sexes. ³⁸ To put it another way, an employer has engaged in impermissible sex discrimination when they would have treated the employee differently had the employee been another sex, such as when an employee does not conform with gender stereotypes. ³⁹ To support this assertion, the EEOC relied heavily on the Supreme Court’s decision in Price Waterhouse. ⁴⁰ In that case, a woman was denied a promotion because her employer deemed her insufficiently feminine. ⁴¹ Her employer suggested that she may have a better chance of promotion if she would “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.” ⁴² The EEOC summarized its stance simply by concluding that “sexual orientation discrimination is sex discrimination” because it is in essence punishing a person for not conforming to their gender assigned at birth. ⁴³ Ultimately, the Second Circuit agreed with the position supported by the EEOC and decided that SOGIE discrimination falls under sex discrimination in Title VII.

While the Eleventh Circuit in Bostock adopted the opposite view of the Second Circuit, a scathing dissent was written in support of the Second and Seventh Circuits’ decisions to apply Title VII to SOGIE. ⁴⁴ Judge Rosenbaum, writing for the dissent, questioned the Eleventh Circuit’s continued adherence to a case decided 10 years before the Supreme Court’s decision in Price Waterhouse. That case, Blum v. Gulf Oil Corp., decided that Title VII did not protect an employee from being discharged due to their sexual orientation. ⁴⁵ That case cites to yet another previous Circuit case, Smith v. Liberty Mutual, which itself was abrogated by Price Waterhouse and another Eleventh Circuit case, Glenn v. Brumby. ⁴⁶ The dissent emphasized that the Eleventh Circuit’s adherence to Evans in Bostock is just one instance of a long string of cases where the Eleventh Circuit failed to analyze whether Title VII provided protections for individuals from discrimination based on sexual orientation. ⁴⁷ The dissent would hold that it is impossible to discriminate against someone for their SOGIE without discriminating on the basis of sex and without engaging in gender stereotyping. ⁴⁸ Further, due to the large amount of members of the public effected by SOGIE discrimination, the Circuit should at the very least supply a well-reasoned opinion without blindly relying on old precedent that does not properly consider Price Waterhouse. ⁴⁹

Based on the sex stereotyping theory, at the very least transgender status is protected under Title VII. This position is best seen in the Eleventh Circuit case, Harris Funeral Homes. ⁵⁰ Like in Zarda, the EEOC advances this argument by citing the Supreme Court in Price Waterhouse, where the Supreme Court ruled that Title VII prohibits sex stereotyping. ⁵¹ The EEOC also cites prior decisions of the Sixth Circuit where it decided that “sex” also refers to “socially-constructed norms associated with a person’s sex.” ⁵² Therefore, discriminating against a transsexual employee who fails to act according to their gender is equivalent to discrimination against a straight person who does not act according to the stereotypes of that gender. ⁵³ In essence, transgender discrimination is per se sex stereotyping. ⁵⁴ The EEOC further argues that the Religious Freedom Restoration Act does not permit an employer to fire an employee just because the employee’s physical appearance, when contrasted with their birth-assigned sex, conflicts with their religious beliefs. ⁵⁵ Though an important consideration, how disparate treatment based on an employee’s SOGIE due to the disparager’s religious beliefs is beyond the purview of this article.

Why Title VII does not extend to SOGIE

Opponents to applying Title VII to SOGIE tend to rely on a textualist argument and emphasize Congress’s role in drafting the statute. After all, Congress was aware that Title VII had repeatedly been held by courts to not apply to claims for discrimination based on sexual orientation or gender identity. ⁵⁶ Further, Congress had numerous occasions to define sex discrimination to include claims based on SOGIE yet failed to do so. ⁵⁷ Although Congress recognized the distinction between sex discrimination and SOGIE discrimination, on multiple occasions they declined to pass legislation to amend Title VII to include discrimination based on SOGIE. ⁵⁸ Congress has also enacted many statutes and regulations which list sex or gender discrimination separately from sexual orientation and gender identity discrimination. ⁵⁹

The Justice Department supports this narrow interpretation of Title VII. ⁶⁰ This assertion was revealed in amicus briefs written to courts as well as in a memorandum authored by then Attorney General Jeff Sessions. ⁶¹ Despite his conclusion that Title VII does not apply to sexual orientation, the Attorney General made clear that he was simply interpreting the law as it currently stood and was not making a statement on what it should be. ⁶² However, like with the EEOC, the Justice Department’s interpretation of Title VII can change over time. For example, a memorandum from the previous Attorney General under the Obama administration concluded that based on a careful reading of Title VII, Supreme Court case law, and developing jurisprudence, that sex discrimination included discrimination based on gender identity. ⁶³ That Attorney General also emphasized that transgender status is included as discrimination based on gender identity. ⁶⁴ Attorney General Sessions later withdrew this memorandum.

The Justice Department’s interpretation of Title VII is also reflected in court cases. In Zarda, the Justice Department posits that the plain language of Title VII indicates that “sex” only refers to gender, not sexual orientation. ⁶⁵ They also reference the long history of court decisions as well as the EEOC’s prior holding that Title VII does not apply to discrimination based on sexual orientation to support its claim. ⁶⁶ The Justice Department further asserts that, even if impermissible under other statutes, it is permissible for an employer to discriminate against members of the LGBT community as long as that discrimination did not solely rely on the individual’s gender. ⁶⁷ However, this does not mean that LGBT individuals cannot bring Title VII claims when they are disparately treated for not following a gender stereotype. ⁶⁸ In this regard, the Department of Justice and the EEOC are in harmony. For example, Zarda, like any heterosexual male, could bring a claim under Title VII if he had been fired for displaying feminine characteristics. ⁶⁹ The two agencies differ in that the Justice Department believes that under the current law the employer can fire Zarda based on his status as a gay male, as long as they would also fire a lesbian female based on her respective sexual orientation and gender identity. ⁷⁰

The Justice Department presents three bases for their opposition to applying Title VII to transgender individuals in Harris Funeral Homes. ⁷¹ First, discriminating against a person because they are transgender is not improper sex stereotyping under Price Waterhouse. ⁷² Second, that the conclusion that gender identity discrimination is equivalent to discrimination based on sex is not in line with the plain meaning of the statute. ⁷³ And third, Supreme Court precedent does not support extending Title VII to transgender discrimination. ⁷⁴ Further, all the Circuit Courts that have heard this issue prior to 2017 concluded that discrimination based on sexual orientation was not sex discrimination under Title VII. ⁷⁵ While all of the Justice Department’s points are contrary to the guidance and assertions of the EEOC, the Justice Department emphasizes that their interpretation is only based on how the law currently stands and that LGBT individuals are permitted to use Title VII the same way as heterosexual individuals. ⁷⁶ This is consistent with their stance in Zarda. ⁷⁷ The Justice Department also stresses that their interpretation of Title VII does not affect their enforcement of other laws that expressly prohibit discrimination based on gender identity. ⁷⁸

The definition of “sex” includes SOGIE

Simply naming a class as protected, without defining it, leaves some ambiguity as to which characteristics are included in that class. Unfortunately, such ambiguity is particularly damaging for people who are members of a sexual orientation and gender identity minority group. When Congress drafted the 1964 Act, they failed to define, or even imply, a definition of “sex.” ⁷⁹ When a statute fails to define a term, the term should “be interpreted as taking [its] ordinary, contemporary, common meaning.” ⁸⁰ A dictionary definition of “sex” at the time the Act was drafted referred to the physiological distinctions between men and women. ⁸¹ Gender, on the other hand, only referred to a grammatical distinction between the sexes. ⁸² However, to truly understand what Congress meant “sex” to refer to, more than the simple dictionary definition must be examined. How words are interpreted is in large part based on the context of the era they were used.

Based on social norms and events at the time, Congress likely could not even fathom the idea of SOGIE being protected from discrimination. Howard W Smith was the Congressman who suggested that sex be a protected class. ⁸³ In his advocacy for including sex in Title VII, Smith references national statistics which revealed a greater population of women compared to men. ⁸⁴ Smith believed that this disproportion merited further protection for women because there were not enough men for all women to have husbands and families. ⁸⁵ How exactly this led him to conclude that sex merited protection under Title VII is unclear, though other sources suggest that Smith was motivated by his fear that not protecting women would mean that Black individuals would enjoy greater protections than White women. ⁸⁶ Others posited that the last-minute addition of sex was Smith’s attempt to make the Civil Rights Act fail to pass all together or that it was an attempt to help the textile mill industry by ending restrictions on women’s labor. ⁸⁷ Regardless, Smith’s focus was on sex in reference to gender and its inclusion was intended to help born women, at least incidentally.

Traditionally, homosexuality and other forms of gender nonconformity were, and in some cases still are, considered a sin by various religious institutions. ⁸⁸ In the decades leading up to the 1964 Act, views of homosexual or gender nonconforming tendencies shifted to being seen, and treated, as a mental disorder. ⁸⁹ In the 1950s and 1960s, conversion therapy was a common technique to attempt to condition individuals to abandon their homosexuality or nonconforming gender identity. ⁹⁰ Treating “homosexuality” as an undesirable disease was extremely prevalent in the psychological community at that time as to merit its inclusion in the 1968 Diagnostic and Statistical Manual II. ⁹¹ It was not until after the 1964 Act that the first gay rights demonstrations took place. ⁹² However, it took years for the gay liberation movement to reach its turning point at Stonewall. ⁹³ Despite this movement, people who did not conform to expected gender and sex stereotypes continued to be discriminated against. The sentiment of the time is reflected in how the Supreme Court ruled in cases dealing specifically with homosexuality. For example, laws which criminalized same-sex sodomy were upheld by the Supreme Court in 1986; it was not until 2003 in Lawrence v. Texas that such laws were deemed unconstitutional by the Supreme Court. ⁹⁴

Now, one of the landmark cases of the decade, Obergefell v. Hodges, represents a massive victory for not just same-sex couples, but the entire LGBT community. ⁹⁵ Obergefell involved same-sex couples who challenged the constitutionality of their states’ bans on same-sex marriage or their states’ refusal to recognize same-sex marriages performed in states that recognized such unions. ⁹⁶ Ultimately, with Kennedy writing for the majority, the Supreme Court ruled in a 5-4 decision that the prohibitions violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. ⁹⁷ The Court placed great emphasis on their determination that the right to marry is a fundamental one. ⁹⁸ This fundamental right is both “implicit in liberty and [a] right[] secured by equal protection.” ⁹⁹ This case exemplifies the growing acceptance of LGBT individuals and, like in Loving v. Virginia, is an important step toward this minority group gaining full equality. ¹⁰⁰ Along with changing attitudes of society, this case also suggests that the Supreme Court may be more open to extending Title VII to prohibit discrimination based on SOGIE. In short, as social understandings evolve, so too may the rulings of the Supreme Court.

Even if “sex” was not understood to include SOGIE at the time the 1964 Act was created, “sex” can still be considered to include SOGIE under the dictionary definition available at its passage. This is because scientific advances adjust what is included in a “physiological” determination of sex. At the time the 1964 Act was passed, a noninvasive method had not yet been developed to allow doctors to easily examine brain structure. The CT scan was not introduced until 1973 and the MRI was not introduced for another 6 years. ¹⁰¹ Further advances in neuroimaging and the birth of cognitive neuroscience in the 1980s lead to the functional imaging of the brain in the 1990s. ¹⁰² This imaging, such as fMRI and BOLD imaging, allowed doctors and researchers to accurately identify which brain regions activated in response to a stimulus. ¹⁰³ Without this technology and increased study in cognitive neuroscience and psychology, the definition of sex formulated at the time Title VII was enacted was limited to a very simplistic and archaic conception of sex. Thanks to technological advances, the common and scientific interpretation of “sex” has drastically changed.

Now, the decades of technological advances allow physiological sex to include distinctions in brain structure across the spectrum of sexualities. There is some evidence that the brain structure of SOGIE individuals formed in a way which corresponds with the gender they identify with. ¹⁰⁴ One theory suggests that sexual orientation is a product of the testosterone and androgen levels people were exposed to while in the womb. ¹⁰⁵ As far as physical brain structure is concerned, there are two brain regions that have been identified as being structured differently for SOGIE individuals. ¹⁰⁶ In one study, researchers found that the hypothalamus, the region responsible for sexual response, differed between gay and straight men. ¹⁰⁷ In gay men, this region reacted to the smell of male pheromones the same way that women’s hypothalami react to male pheromones. ¹⁰⁸ Beyond the hypothalamus, researchers also found that the amygdala, the structure responsible for processing emotion, was similar between gay men and straight women. Likewise, the amygdala of lesbian women tended to be similar with the amygdala of straight males. ¹⁰⁹ Further, brain hemisphere sizes in gay men, in addition to the number of nerves connecting the two hemispheres, resembled the size and connections of straight females. ¹¹⁰ The same was seen regarding lesbian women and straight males. ¹¹¹ With transgender individuals, additional similarities with their self-identified sex exist even before starting hormone therapy. ¹¹² For example, the brains of male to female transgender individuals have less androgen receptors than straight males. ¹¹³ This decreased level may lead to less effective testosterone signaling, leading to diminished masculine behavior. ¹¹⁴

Although neuroscience and law is a relatively new field, the Supreme Court has considered neuroscience multiple times in the past in its decisions. For example, in his opinion Justice Kennedy discussed neuroscience extensively when deciding to ban the death penalty for children under 18 in Roper v. Simmons. ¹¹⁵ While neuroscientific findings are more commonly used in the criminal context, they should still play a role in defining “sex” and in interpreting sex stereotyping. The social sciences have also found a place in Supreme Court decisions. The American Psychological Association (APA) submitted an amicus brief in support of the employee in Price Waterhouse. ¹¹⁶ The APA argued that sex stereotyping results in unequal and discriminatory treatment in the workplace. ¹¹⁷ To support this, the APA referenced many empirical studies to demonstrate that such a conclusion has gained general acceptance in the scientific community. ¹¹⁸ Although the Court did not specifically reference this amicus brief in its decision, its substance was considered. The Court wrote that it did not require a psychology degree to understand that the employer’s promotion decision was motivated by sex stereotyping and considered the expert testimony concerning sex stereotyping as “icing on the cake.” ¹¹⁹

Deference to agencies

If the state of the science on biological sex is considered unclear, the Supreme Court may defer to the EEOC’s interpretations. Exactly how deferential the Supreme Court is to their determinations, however, is uncertain. There are three levels of deference that the Supreme Court can give to the EEOC’s guidelines and findings of discrimination: Chevron deference, Auer deference, and Skidmore deference.

As a general rule, courts do not defer to EEOC regulations which relate to the substantive issues of Title VII of the Civil Rights Act of 1964. ¹²⁰ This is because Congress did not give the EEOC the power to pass legislative regulations, restricting the EEOC to mere interpretation of Title VII. ¹²¹ As a result, historically the Supreme Court has been reluctant to defer to guidelines issued by the EEOC concerning Title VII. ¹²² When it comes to the interpretive guidelines issued by the EEOC, the Supreme Court has applied Skidmore deference. ¹²³ Under this standard, the guidelines are “entitled to respect” but are only viewed as persuasive. ¹²⁴ However, there are some instances where the Supreme Court will apply Chevron deference to the EEOC’s interpretation of Title VII. The Court ruled in EEOC v. Commercial Office Products that when the language of Title VII is ambiguous or Congress is silent on the issue, the EEOC’s interpretation of that language is only required to be reasonable to be afforded deference by the Supreme Court. ¹²⁵ This should mean that because the definition of “sex” in regard to discrimination under Title VII both has not been addressed by Congress and is ambiguous, the EEOC’s adjudications should be deferred to by the Court as long as they are reasonable. ¹²⁶ However, it seems that the holding in Commercial Office Products was later forgotten by the Court, excluding the late Justice Scalia. ¹²⁷ At the very least, the EEOC’s decisions in Macy and Baldwin are considered to be persuasive. ¹²⁸

EEOC guidelines would likely receive less deference from the Supreme Court than EEOC interpretations of regulations in its adjudications. It seems that, at most, agency guidelines receive Skidmore deference. ¹²⁹ In Young v. UPS, the Solicitor General encouraged the Supreme Court to give special, or even controlling, weight to an EEOC guideline applying Title VII to pregnant employees. ¹³⁰ The Supreme Court disagreed with the Solicitor General because the “guideline lacks the timing, ‘consistency’, and ‘thoroughness’ of ‘consideration’ necessary to ‘give it power to persuade’.” ¹³¹ The Court focused on the fact that the EEOC had not released its guidelines until after the Court had granted certiorari, took a position that previous guidelines had not addressed, was inconsistent with the government’s long-held position, and that the EEOC failed to explain the basis for the guidance. ¹³²

The controversy surrounding the EEOC’s current interpretation of Title VII regarding sexual orientation meets the requirements discussed by the Supreme Court that the EEOC failed to meet when applying Title VII to pregnant employees. The EEOC has already released guidelines for including sexual orientation discrimination in Title VII and the Supreme Court has yet to issue a decision for Zarda, Harris Funeral Homes, or Bostock. ¹³³ Although the EEOC did not interpret Title VII to include sexual orientation until 2012, the foundation for its conclusion was at least set by the Supreme Court back in 1989 in Price Waterhouse. ¹³⁴ After the EEOC’s interpretation of Title VII in 2012, it was not until the Trump administration began that the Justice Department started criticizing the EEOC’s interpretation. ¹³⁵ Likewise, a new EEOC chair from the Trump administration may change the EEOC’s opinion before a Title VII case reaches adjudication by the Supreme Court. Further, given the currently differing opinions between the EEOC and the Department of Justice, the EEOC’s position has been lessened given the Department of Justice’s leading role in oral argument before the court.

In the end, a potential change in the EEOC’s interpretation of Title VII may be uninfluential. In recent cases, the Court has rejected agency requests to apply Chevron deference. ¹³⁶ With the additions of Justice Gorsuch and Justice Kavanagh, the Court is expected to limit the scope of Chevron but is unlikely to overrule it. ¹³⁷ Justice Gorsuch criticized the Chevron doctrine and called it a “judge-made doctrine for the abdication of judicial duty” in a case while serving on the Tenth Circuit. ¹³⁸ While serving on the DC Circuit, Justice Kavanagh would regularly determine that a law was unambiguous to avoid deferring to the agency’s interpretation and was skeptical that courts were even capable of deciding whether a statute is ambiguous. ¹³⁹