Pundits and politicians will tell you that Tuesday’s arguments in Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. and G.R. Harris Funeral Homes v. EEOC hold in the balance whether LGBT employees can be wantonly fired from their jobs. In reality, what is at stake is something far more fundamental to the American way of government: the democratic process.
The facts of the cases are widely known. Two gay men and a transgender woman were terminated because of their gender identity or sexual orientation. In Harris, for instance, an employee hired as a man decided to live life as a transgender woman. Since that did not square with the dress code of his place of employment — men wear suits, women wear dresses — the employee was at an impasse with the perplexed employer. The employer fired the employee who refused to dress like the man he once said he was. As in Bostock and Zarda, the plaintiffs argue that Title VII, that section of federal law that outlaws employment discrimination based on a person’s sex, includes sex stereotypes.
Federal law has very little to say about sexual orientation and gender identity. But that’s not for want of trying. In 1994, Congress considered the Employment Nondiscrimination Act (ENDA), borrowing from similar legislation introduced in 1974. ENDA sought to introduce a definition of gender identity into federal law and further abrogate Title VII’s protections to include gender identity and, later, sexual orientation.
Yet despite having had sizable majorities in Congress since that time, Democrats have never won support of the law. Earlier this year, Congress considered the Equality Act, a significantly more far-reaching proposal than ENDA. Whereas ENDA at least provided some concession to religious employers, the Equality Act offered none whatsoever. Thomas Farr, president of the Religious Freedom Institute, went so far as to criticize the Equality Act for assuming “that those who have reached that conclusion are indecent and dishonorable.” It passed the House but has not been taken up in the U.S. Senate. Still, Democrats have rallied around the Equality Act, and most of the field of Democratic presidential hopefuls have announced support for it.
Meanwhile, various states have altered or updated their state nondiscrimination statutes, and even in states that have been reluctant to add the new categories of sexual orientation and gender identity to the nondiscrimination laws, local municipalities have done so.
It is therefore clear that, since at least 1974, from the halls of Congress to the council chambers of Main Street, Americans have been having a democratic debate over whether to include sexual orientation and gender identity in our nondiscrimination laws. And that debate is far from over.
On the other side of this debate are social and religious conservatives who fear the loss of religious-liberty protections. Having witnessed Jack Phillips, Aaron and Melissa Klein, and so many others being forced to defend their consciences in court, they fear they may be next.
It’s a fear that stems from an honest sense that they might be summarily pronounced bigots in a rapidly changing world. These Americans may struggle to articulate why they oppose allowing biological males who identify as female to use the women’s locker room with the smoothness of a slick politician. To them, it’s just common sense: Men are men, and women are women.
Still, they suspect they will be left holding the short end of the stick if judges are left making the decisions by fiat. And so they vote, they call their congressmen, and they write letters to the editor hoping that their leaders will listen to them.
That is what made Tuesday’s exchange between Solicitor General Noel Francisco and two of the justices so consequential. Francisco argued on behalf of the United States and against its own Equal Employment Opportunity Commission which, under the previous administration, argued that Title VII’s protections bootstrap gender identity and sexual orientation onto the word “sex.”
To Justice Breyer, Francisco argued that, should the justices adopt the changes the plaintiffs argue to the word “sex” in Title VII, it would set aside the democratic process and deliver “a complete victory to one side of the fight and nothing to the other side.”
That prompted an immediate query from Justice Sonia Sotomayor: “At what point does a court say, Congress spoke about this . . . and regardless of what others may have thought over time, it’s very clear that what’s happening fits those words. At what point do we say we have to step in?”
Francisco’s response was profound in its simplicity: “I guess my answer, Your Honor, would be at the point when Congress actually addresses the issue.”
Congress has not addressed the issue. In fact, it could not — even in passing — because we have been told that the concept of sex is a socialized construct, something untethered to one’s biology. Yet suddenly we are to accept the premise that Congress has spoken because, whatever one’s sexual orientation or gender identity may be, it is inextricably tied to sex.
And, if neighboring municipalities can disagree with state legislatures and, in 45 years, Congress cannot agree to include these concepts in federal law, why should nine judges impose it upon hundreds of millions of Americans?
They should not. Questions of equality, fairness, and religious liberty aside, at the very minimum, the question everyone should be asking is this: What would yet another judicial decree on a contentious cultural question mean for our federal system?
Equality and nondiscrimination mean very little in the hands of a democracy that can be altered by the stroke of the judicial pen.