The United States and North Carolina are currently engaged in the fiercest legal battle over Americans’ civil rights since the era of integration. At issue this time around are the rights of transgender Americans, specifically, the right of trans students and employees to use the bathroom consistent with their gender identity without fear of legal punishment. This battle largely boils down to the meaning of sex discrimination, which federal law forbids in education and employment. The federal government argues that sex discrimination is an expansive concept that encompasses the ways we express our gender. North Carolina insists that sex discrimination is narrow—little more than a ban on mistreatment because of an individual’s “biological sex.”
Gillian Thomas, an attorney with the ACLU’s Women’s Rights Project, is the country’s foremost expert on the meaning of the “sex discrimination” prohibition in Title VII of the Civil Rights Act of 1964, which bars workplace discrimination. Thomas recently published Because of Sex, the definitive account of Title VII’s sex provision. We spoke on Tuesday about the original intent of the law, its evolution in the courts, and its extension to North Carolina’s new measure. Our conversation has been edited and condensed.
Mark Joseph Stern: How did a ban on sex discrimination in the workplace wind up in the Civil Rights Act of 1964?
Gillian Thomas: In its original form, the law addressed discrimination based on race, national origin, color, and religion. And then, just as the bill was about to be sent to the full House of Representatives for a vote, Rep. Howard Smith of Virginia—a virulent racist who was rabidly opposed to the bill—announced that he wanted to add a sex provision.
It wasn’t a total surprise; Smith had, for many weeks, said he was thinking about adding the amendment. Incongruously, he was a longtime supporter of the Equal Rights Amendment and the National Women’s Party. Women’s groups started pressuring him, saying: Listen, if this bill passes, black women will enjoy more protection in the workplace—by virtue of their race—than white women. So Smith was worried that white women might have less coverage, but he also did have a real, genuine support for women’s rights and believed that if this bill was going to pass, women should be a part of it.
How did courts interpret the sex provision in those early years?
No one knew how to read it at all. The leadership of the Equal Employment Opportunity Commission thought it was a joke. When the first commissioner, Franklin Roosevelt Jr., was asked, “What about sex?” he said: “Don’t get me started—I’m all for it!” Back then, the EEOC had a position called executive director, and one of the first executive directors called the sex provision “a fluke that was conceived out of wedlock.” Another executive director said, “Don’t worry, we aren’t going to make men hire male secretaries.” The EEOC wasn’t even sure what to do about the most obvious kinds of sex discrimination.
Conservatives today criticize the EEOC for allegedly straying from the original meaning of “sex discrimination”—but it sounds like that original meaning was quite ambiguous.
Right. It was hardly clear, even at the time, what Congress had meant. It was really unclear from the start what this amendment was supposed to do. It was left to the courts to issue rulings that put meat on the bones of that very simple language.
How did the Supreme Court initially interpret “sex discrimination”?
The very first Title VII case that went to the Supreme Court was the case of Ida Phillips, who had applied for an assembly line job. She was rejected because she had a preschool-age daughter; the company refused to hire women who were parents of preschool-age children. Fathers of preschool-age children were OK, though. The company subscribed to a stereotyped belief that mothers were unreliable workers. But the company argued, “We aren’t discriminating because of sex; we’re just saying mothers of young children can’t be here. And our rule can’t be discriminatory if we’re not saying ‘no women allowed.’ ”
The court ruled in Phillips’ favor, holding that distinctions among women could be discriminatory. That was critically important for the development of what “because of sex” means. It didn’t just mean distinctions between men and women—it meant distinctions among women as well.
That case, then, really marked the start of Title VII’s expansion.
Right. And after the Phillips case, the court expanded the definition of “sex discrimination” further—holding, for instance, that certain height and weight restrictions had an unlawful disparate impact on women. And the court found that sexual harassment, including a hostile work environment, constituted discrimination “because of sex.” But it also upheld an Alabama law barring women from working as prison guards in contact positions, because the job was just too dangerous. Obviously, the court still wasn’t sure how it felt about relying on stereotypes to limit some jobs to men only.
Speaking of sex stereotyping, can you explain why Ann Hopkins’ now-famous sex discrimination lawsuit became so critical to Title VII’s evolution?
Ann Hopkins was a consultant at Price Waterhouse who applied for partner but was held over. When she asked for an explanation, all she got was criticism from the partners who had worked with her. They complained that she “needed a course at charm school,” was “macho,” overcompensated for being a woman, and used bad language unbecoming to a potential “lady partner.” She went to her mentor—a man—and said, “This is who I am. How do I change who I am?” He told her: Walk more femininely, talk more femininely, act more femininely, wear makeup and jewelry, and get your hair styled. Hopkins sued for sex discrimination.
The Supreme Court ruled in her favor. And while the court had a split ruling on two side issues, it was unanimous on the question of “sex-stereotyping,” holding that “sex-based considerations” in the workplace are unlawful under Title VII. As the opinion put it, “If an employee's flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex, and not her interpersonal skills, that has drawn the criticism.”
This was an absolutely revolutionary decision. The court essentially held that punishing someone for being the wrong kind of woman is just the same as punishing her for being a woman at all. Insisting that there is one right way to be a woman—or to be a man—is sex discrimination.
How did that holding give rise to the theory that anti-trans discrimination and sexual orientation discrimination are also “sex-stereotyping”?
In interpreting Title VII’s sex provision, it’s a straight line from Price Waterhouse to sexual orientation and anti-trans discrimination. We’ve already said that men and women can do any job. We’ve already said the capacity for having children is no impediment to a woman doing anything she wants. We’ve already said that ridiculing or harassing someone because of their sex is illegal. We’ve already said that stereotyping—forcing someone to look or act a certain way—is also illegal.
I don’t see the difference when it comes to LGBT discrimination. If you’re a trans man, you’re a man. If you’re a trans woman, you’re a woman. Discrimination on the basis of that identity is discrimination based on your sex. Similarly, with sexual orientation, there’s nothing more basic to your identity as a man or as a woman than who you love. It’s a central stereotype about manhood or womanhood: Men should only be in love with women, and women should only be in love with men. To me, it’s a natural evolution to view that stereotype as sex discrimination.
Conservatives would argue that sex discrimination means discrimination on the basis of “biological sex”—basically, sex organs—and thus cannot encompass gender identity discrimination, including discrimination against trans employees.
Well, the meaning of sex discrimination has always been a moving target. There’s never been a moment in time when it was fixed. We have no definitive word on the matter.
But I don’t think sex discrimination was ever understood purely as sex organs, even in 1964. Look at the floor debate over Title VII. When legislators talked about outlawing sex discrimination, they were really talking about men and women’s place in society, in the family, in relation to our laws. For instance, Rep. Emanuel Celler—the floor manager of the Civil Rights Act—gave this handwringing speech wherein he said, “If we give equal access on the job to women, what does this do to alimony laws? Rape laws? The draft? What does this do to family roles? Who’s responsible for the upbringing of children?” He saw the law as the upending of the whole social order.
I think the prohibition on sex discrimination was about changing women’s whole status in the country. No one can claim a total understanding of what was intended, but the law simply doesn’t support a reading limited to sex organs. Price Waterhouse made that clear. Oncale v. Sundowner, which extended unlawful workplace harassment to include same-sex harassment, made that clear. Men and women are covered by this law equally, and it extends to broader ideas of manhood and womanhood and sexuality. Sex has come to be synonymous with gender when you’re talking about legal interpretations.
Do you agree with the Justice Department, then, that HB2, North Carolina’s new bill regulating trans bathroom use, constitutes sex discrimination?
Title VII prohibits sex discrimination “in the terms, conditions, or privileges of employment.” That’s where sexual harassment is situated—it’s a condition of work you’re being subjected to. HB2’s bathroom provision is the same thing. To say that a trans woman can’t go to the bathroom in the space that she identifies with as a woman—and then make her go into the men’s room with all of her male colleagues—is a condition of work that is discriminatory. It’s a condition that only trans women and trans men are having to face. It is, quite clearly, discrimination “because of sex.”