Does “sex” include sexual orientation and gender identity?

Last Friday, the Law School’s Federalist Society hosted Dr. Ryan T. Anderson, the William E. Simon Senior Research Fellow in American Principles & Public Policy at the Heritage Foundation. He has authored or co-authored several books, including When Harry Became Sally: Responding to the Transgender Moment. He was on campus to discuss several cases that the U.S. Supreme Court will hear this term.

At issue in the cases––Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and Harris Funeral Homes v. EEOC––is Title VII of the 1964 Civil Rights Act; in particular, whether Title VII’s prohibition on sex discrimination covers sexual orientation and gender identity.

Anderson argued that it cannot extend in this way. Both in his talk and in his recently-filed amicus brief for employers, he emphasizes that no person is excluded from the protection of Title VII. Congress did not include sexual orientation or gender identity, and has not chosen to do so since. In each of the past 50 years, Congress has introduced a ban on sexual orientaton discrimination and “rejected it.” In the past 25 years, Congress has also introduced gender identity into the Civil Rights Act, and these proposals too have failed. The city of South Bend, Anderson emphasized, has an ordinance prohibiting discrimination on the basis of sex, sexual orientation and gender identity, but it didn’t always. 

Anderson said you can think the extensions are a good or a bad idea, but that this is a matter of policy, “not a question for the courts.”

He argued, further, that respondents and their amici want to “redefine the word sex to mean sexual orientation and gender identity,” but that in fact, these are “analytically distinct concepts.” “I didn’t create the terms of the title of this talk,” Anderson told the audience. “Sexism, heterosexism, cissexism—I borrow these terms from the Human Rights Campaign [an LGBT activist organization].” And these assumptions manifest themselves in separate and distinct forms of negative attitudes and actions: misogyny, homophobia, and transphobia. While the latter two can of course take the form of sexual orientation or gender identity discrimination, they are not sex discrimination.

Nevertheless, respondents and their amici want courts––in this case, the U.S. Supreme Court––to rule that they are. Anderson thinks this move forces them to “deploy a rather faulty account of what constitutes discrimination.” They believe that “any time the same decision would not have been made had the employee’s sex been different, an employer discriminates ‘because of sex.’” Similarly, amici law professors Andrew Koppelman and William Eskridge argue that “an employer violates the law if it (1) takes negative employment action (2) that is causally linked to (3) the sex of the employee.” 

But this account, Anderson argued in the talk, gets the issue exactly wrong. To illustrate the flaws of this standard, he provided an example. What Aunt Pamela were an actor on Baywatch and she wanted to wear only swim trunks, just like David Hasselhoff? She refuses to wear a top. Because of FCC obscenity regulations, the producers cannot air the show if Aunt Pamela refuses to wear a top and still insists on being in the show. So they fire her. Under respondents’ theory, the producers would be guilty of sex discrimination under Title VII. Hasselhoff doesn’t have to wear a top, so why––the logic goes––does Aunt Pamela have to? 

The relevant question is whether there is an unequal burden on men and women. In this case, answering the question requires taking into account relevant biological differences, and doing so does not necessarily mean that there is wrongful discrimination. The regulations impose the same burden on men and women. If Hasselhoff refused to wear swim trunks, he could have been fired too. 

This is what Anderson called “the Ginsburg principle,” or a principle against double standards for men and women. And this is essentially the standard the Court has taken up in interpreting Title VII. For example, if a Catholic school expected its teachers to honor the virtue of chastity––which takes no account of “…abilities or inabilities, strengths or weaknesses”––and punished only female employees for having sex outside of marriage, here it has engaged in sex discrimination. It has applied a double standard.

While the Supreme Court has ruled out this kind of double standard as sex discrimination, it has also expressly not prohibited sex-specific regulations, like separate bathrooms. As Anderson put it, quoting Justices Scalia and Ginsburg, Title VII requires “neither asexuality nor androgyny.” In other words, the law can legitimately account for differences, but should not rely on sex stereotypes and cannot apply double standards. Indeed, a reasonable awareness of women’s privacy and safety concerns requires that men and women be given separate spaces to, in Ginsburg’s view, “disrobe, sleep, perform personal bodily functions.” 

If the Catholic school discussed above maintained separate bathrooms or dormitories for men and women, it would not be guilty of sex discrimination as the Court understands it. But if one buys into respondents’ theory of discrimination, Anderson posited, then these spaces which Justice Ginsburg thinks are required for true equality would become illegitimate. 

“What’s at stake in these cases if you buy into the respondents’ argument are any distinctions between male and female,” Anderson made clear. Law student Charles Darantière commented, “[Anderson’s] most striking point was that, far from being compatible with contemporary gender theory, the Title VII prohibition of discrimination on the basis of sex was grounded on a binary understanding of the sexual characteristic of our species.”

Of course, these are controversial issues. In an email to the Rover, Anderson summarized the approach that he thinks students should take: “Legal questions on sexual orientation and gender identity are among the most difficult, sensitive, important, and controversial. So it’s important that when we discuss them we approach them with clarity and charity, doing our best to bring careful thinking to difficult questions while expressing our conclusions as respectfully as possible.”

To many students, Anderson actually lives this out. Deion Kathawa, a third-year law student, observed, “Ryan is always unfailingly charitable and reasonable when presenting his arguments.” 

Even so, the event did not avoid controversy. Prior to Anderson’s talk, an inflammatory print-out was placed on nearly every chair. The headline read, “Homophobia has consequences,” citing suicide statistics for LGBT populations and accusing Anderson of violating informed-consent laws in his book (the stories of de-transitioners referenced were previously-published material). The back displayed Mark Aguhar’s “Litanies to My Heavenly Brown Body,” in which the author revises Christ’s Sermon on the Mount to include, among other descriptions, “Blessed are the boi dykes” and “Blessed are the kinksters.” 

Those in this community should be reminded that all humans possess intrinsic dignity, regardless of sexual identity. And while these are emotionally charged topics, the Notre Dame community must be committed to respectful discourse. We should aspire to be an example of fruitful discussion, even about the most difficult subjects. Signs like the one explained above are good only for heat, not for the light required to pursue the truth. That pursuit is why Notre Dame exists, and it’s why we’re here. We ought to act like it.

Nick Marr is a senior from San Diego, CA studying political theory. As a 10 year old, he argued with a Supreme Court justice about who was a bigger Notre Dame fan. It was neither his first nor his last argument. He can be reached at nmarr@nd.edu.