SCOTUS Hears Employment Cases

Oct 7, 2019

The Supreme Court will hear three cases tomorrow regarding whether federal anti-discrimination laws should apply to “sexual orientation” and “gender identity.” Liberty Counsel filed two amicus briefs in support of the employers in each of the cases.

The question before the High Court is whether Title VII of the Civil Rights Act of 1964 that includes “sex” as a protected category for purposes of employment should be interpreted to also include “sexual orientation” and “gender identity.” Two lower federal courts disagreed on whether the plain wording of the word “sex” should include “sexual orientation.” A third case ruled that the law should include “gender identity.” To include either term would require the law to be re-written, which is the prerogative of the legislature.

Title VII was enacted, in part, to protect women in the workforce from discrimination, and does not include claims based on “sexual orientation” and “gender identity.” The Supreme Court’s sex discrimination precedents recognize the common-sense reality that men and women are biologically distinct, with immutable characteristics that divide men and women into two, separately-identifiable groups. In 1964, the word “sex” clearly meant male and female. Moreover, Congress has repeatedly rejected multiple attempts to add “sexual orientation” and “gender identity” to the law. Adding “gender identity” would undermine the intent and purpose of the law to protect women. Gender identity would eviscerate the law by allowing males to subjectively claim to be female. To broadly interpret plain meaning of “sex” to include someone who is male, but subjectively wants to “identity” as “female,” does not advance the purposes of ensuring that women, as a class, and men, as a class, are afforded the same workplace opportunities.

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