U.S. Supreme Court Rewrites the Law on Sex Discrimination: What Can We Do?

In a ruling issued on Monday, June 15, six justices said that the word “sex” in the Civil Rights Act could be expanded so that the law now provides special protection to those who identify as gay, lesbian or transgender.  


In 1964, the U.S. Congress enacted the Civil Rights Act. It was an important breakthrough in giving protection to racial minorities who might otherwise be fired or denied employment solely because of their race. The law also prevented employers from firing or refusing to hire someone “because of … sex.”


Recently, some members of Congress tried to change that law by adding new categories: “sexual orientation” and “gender identity.” Their proposal was called the “Equality Act,” and because of the radical changes it would make to federal law and threats it would create for religious employers, it has failed in the Senate.


What the elected representatives of the American people declined to do, a majority of appointed justices on the U.S. Supreme Court have done instead. 


The majority opinion claims that this is required because the plain meaning of the word “sex” as used by Congress in 1964 must have included these other concepts—even though they were essentially unknown at the time the Civil Rights Act became law.


A strong dissent from Justice Samuel Alito points out what is really happening: “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.” 


Justice Alito points out that the Court has usurped “the constitutional authority of the other branches.”


He explains that the appropriate legal rule is to interpret a statute as it would have been understood by reasonable people at the time it was enacted, and “If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual ori­entation––not to mention gender identity, a concept that was essentially unknown at the time.” 


He explains, “the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”


Justice Alito notes that since the term “because of sex” appears in more than 100 federal statutes, the court ruling will have wide-ranging consequences: “the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.”


For instance, Justice Alito points out:


  • “The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individ­uals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for oth­ers, there is more at stake. For women who have been vic­timized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a con­fined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”


  • “The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but iden­tify as female and students who are taking male hormones in order to transition from female to male.”


  • “The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates.”


  • The decision may compel “a religious or­ganization to employ individuals whose conduct flouts the tenets of the organization’s faith” and thus “forces the group to com­municate an objectionable message.”


  • Employers may have to cover “sex change” procedures with their healthcare plans.


  • “The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students.”


  • “The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment proce­dures.”


The only remedy American people have is to amend Title VII to clarify that the original understanding of the law is still the only valid one. They could do this by simply adding one word to the law, saying that employers cannot discriminate because of an individual’s “biological” sex. That is indisputably what Congress thought when it passed the law, and any changes should be made by vote of the accountable representative branches of government, not unelected judges.