The early 1960s were a time of powerful social ferment, as Americans increasingly demanded an end to racial discrimination in a wide range of everyday activities, throughout the country. President John F. Kennedy advocated for federal laws to bar such discrimination, and in the wake of his assassination in 1963, President Lyndon B. Johnson heavily lobbied his former Senate colleagues and other legislators to make it happen. Happily for GLBT Americans, a group of officials hatched a plan to defeat the effort.
These members of Congress, drawn heavily from Southern states and—ironically in light of current politics—mostly Democratic, were horrified at the prospect of a federal bill that would bar discrimination on the basis of race. Determined to derail the bill, this group devised a scheme to make the proposal so unpalatable as to pick off enough supporters’ votes and thereby guarantee its failure.
The plan? Expand the bill to also prohibit discrimination on the basis of sex.
The plotters duly introduced an amendment to the pending legislation that would also bar sex discrimination, confident that enough of their colleagues would recoil from such a monstrous step that the whole bill would go down in flames.
To their chagrin, the effort backfired significantly: the amendment was adopted and the bill containing it was also approved, and sent to President Johnson, who signed the Civil Rights Act of 1964 into law on July 2 of that year. In the half-century since, federal law barred discrimination on the bases of race, national origin, color, religion—and sex.
And today, the GLBT community celebrates not only the fiftieth anniversary of the passage of this landmark legislation, but in particular, the ill-fated attempt to prevent it altogether.
This seems counter-intuitive at best. The Act does not include sexual orientation or gender identity, the two characteristics of critical importance to the GLBT community. And the Act has protected people in our community from racial, religious, and other forms of discrimination. So why do we care?
We care, because the effort to prevent the Act’s passage turns out to be key in securing GLBT Americans’ protection from discrimination.
In the first roughly 15 years after the Act’s passage, several complaints were filed in federal courts by lesbian, gay, bisexual, or transgender plaintiffs, claiming that they were fired or otherwise discriminated against because of their sexual orientation or gender identity. Routinely, the courts’ response was to tut-tut about the inappropriateness of such discrimination, but to conclude that, unfortunately, the Civil Rights Act of 1964 did not prohibit it, and thus the plaintiffs’ cases failed. Efforts to further amend the Act to include sexual orientation began in the mid-1970s, and have yet to be successful; the more limited Employment Non-Discrimination Act (ENDA), which also includes gender identity, has been stalled in Congress for over twenty years.
But in 1989, the US Supreme Court issued what turned out to be a pivotal ruling in not only Civil Rights Act jurisprudence, but in the GLBT community’s long struggle for protection from employment and other forms of discrimination. In a case called Price Waterhouse v. Hopkins, the Court held that because the Act bars sex discrimination in employment, the Act prohibits employers from trying to police employees’ gender roles. In that case, Price Waterhouse declined to promote Ann Hopkins, and told her that she would be more successful if she were to act and present in a more feminine manner, and to be “less mannish.” Hopkins’ victory over Price Waterhouse led to the emergence of a whole new way to articulate sex-discrimination claims: employees could now allege that their employers discriminated against them by subjecting them to “sex-stereotyping” — that they didn’t fit the “norms” of what is expected of a “real” man or a “real” woman.
In the wake of Price Waterhouse, the landscape facing GLBT people experiencing discrimination suddenly shifted. Transgender workers in particular began finding success when they filed claims asserting that they lost their jobs, or were denied jobs, because their employers didn’t feel they fit the “norm” of what it meant to be a man or a woman. “Sex-stereotyping” claims began appearing more frequently in the courts and at the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the employment provisions of the Act, known as Title VII. And those claims—alleging a form of sex discrimination—were succeeding, providing increased protections for transgender Americans in the workplace.
By the early years of the 21st century, the analysis evolved further. In a case called Schroer v. Billington, a federal court concluded that it was not necessary to invoke the concept of “sex-stereotyping” in order to rule in favor of a complaining party. Where a transgender person was denied employment because of their transgender status, the court determined, this was simply sex discrimination, period. The judge reasoned that just as Title VII’s prohibition on religious discrimination would bar discrimination against an employee because they changed their religious identity, the prohibition on sex discrimination would bar discrimination against an employee because they changed their sex. And in 2012, the EEOC adopted this analysis as its own, in a case called Macy v. Holder. Today, the Civil Rights Act of 1964 bars discrimination against transgender people as a form of sex discrimination—a form of discrimination included in the Act only as an effort to defeat it altogether.
This broad interpretation of the term “sex” is not limited only to employment matters. Just this spring, the US Department of Education confirmed that the same interpretation of “sex” applies also to what is known as Title IX, which bars sex discrimination in education. Transgender students now enjoy clearer protections under federal law. The analysis also has found its way into constitutional law: in a case known as Glenn v. Brumby, a federal appellate court held that a fired transgender worker’s discrimination complaint against the state of Georgia triggered heightened review under the constitution’s “equal protection” doctrine. Applying more exacting review of government actions targeting transgender people makes it more likely that such actions will be found unconstitutional—another important victory for transgender Americans.
So while this may be great news for transgender people, what about the Ls, Gs, and Bs? Are they left out? The trend lines suggest not. First, lesbian, gay, and bisexual people have already been able to file “sex-stereotyping” claims in some cases. For example, here in Minnesota, a student experienced serious harassment, related to his sexual orientation, in the Duluth school he attended in the early 1990s. He filed suit in federal court against the district for conduct, which it refused to stop, occurring both before and after 1993, when sexual orientation (including gender identity) was added to the Minnesota Human Rights Act. The school district sought to have the pre-1993 complaints dismissed, because sexual orientation was not in the state’s nondiscrimination law at that time. The federal judge refused to dismiss those complaints, reasoning (20 years before the Department of Education caught up) that the “sex” language in Title IX prohibited discrimination in the form of harassing the student for not seeming to be a “real man.”
More recently, EEOC has begun taking a different sort of complaint. Two with similar fact patterns directly suggest that the evolution of the understanding of “sex” discrimination continues. The basic story is this: an employee at a workplace subject to Title VII marries an individual of the same sex. When the employer learns of this, the employee is subjected to harassment or even fired. The employee files a complaint of sex discrimination. The fact EEOC is accepting such complaints suggest that the agency may be open to considering either (a) that the harassment/firing reflects the employer’s judgment that a man, for example, who marries another man is not a “real man,” because a “real man” would marry a woman, or (b) that the harassment/firing is directly related to the sex of the employee’s spouse; had the employee married a person of the other sex, they would not have been fired, thus the response is ultimately based on “sex.” Either way, it is possible that lesbian, gay, and bisexual Americans may find additional protection under the law because our society’s concept of “sex discrimination” continues to evolve.
Ironically, this evolution could well move more quickly than progress toward passage of ENDA in our deeply-divided Congress. Because agency interpretations could be overturned by courts or Congress, continuing efforts to expressly include sexual orientation and gender identity in federal law are worthwhile. But in the meantime, on this fiftieth anniversary of this critical legislation, language that was included specifically to derail the bill has turned out to be critical to vindicating the rights of people barely on the legislative radar in 1964. This is indeed worth celebrating.