In the new biographical film On The Basis Of Sex, a young Ruth Bader Ginsburg argues one of the first cases in which courts ruled against gender-based discrimination. Half a century later, those same arguments are playing out in courtrooms across the country as LGBTQ people fights for protection from discrimination “on the basis of sex.”
The campaign for LGBTQ equality has been multipronged. Politically, advocates have called on lawmakers to enumerate “sexual orientation” and “gender identity” (collectively, “SOGI”) as protected categories in nondiscrimination laws alongside other categories like race, religion, and sex. This tactic has been successful in just under half of the states and in many municipalities, but not at the federal level.
Meanwhile, in the courts, victims of discrimination have argued for the court’s protection on two fronts. Just as Ginsburg can be seen doing in the movie, LGBTQ people have argued that laws that treat them differently violate their due process and equal protection rights. Indeed, these contentions allowed same-sex couples to prevail in 2015, when the Supreme Court enshrined their right to marry.
But LGBTQ people have also argued in the courts that they should be protected under the umbrella of legal precedents that Ginsburg helped set. Two Supreme Court cases since the events portrayed in the film have made this increasingly possible.
In the 1989 case Price Waterhouse v. Hopkins, a woman argued that she was denied a partnership in the accounting firm for not acting womanly enough. The Supreme Court agreed, concluding that discrimination on the basis of gender stereotypes is a form of sex discrimination.
Furthermore, in the 1998 case Oncale v. Sundowner Offshore Services, the Supreme Court unanimously ruled that sexual harassment between individuals of the same sex counts as harassment “because of sex,” which meant that victims of such harassment were entitled to protection under Title VII of the Civil Rights Act. In other words, sex-based discrimination does not require that the person discriminating be of a different sex than the victim. In his opinion, Justice Antonin Scalia acknowledged that while lawmakers likely did not contemplate same-sex sexual harassment when they crafted the law, “[s]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Advocates of the LGBTQ community have since worked to convince the courts that discrimination against people based on their sexuality or gender identity constitute “reasonably comparable evils” to sex discrimination — and in recent years, they’ve been rather successful.
SOGI = Sex
Conservatives have countered efforts to find LGBTQ protections under “sex” by arguing that Congress has had opportunities to explicitly protect LGBTQ persons, but have neglected to do so. This appeals to the sensibility that one’s sexual orientation or gender identity is distinct from one’s gender, but it ignores how all of these identities are inherently interconnected.
If an employer fires a worker for being gay, that employer is necessarily making a distinction on the basis of sex. In fact, there are three different sex-based determinations that can all factor into such a decision:
- The worker’s partner: The most obvious sex distinction involves the worker’s partner. If the employer hires men who have relationships with women, but fires men who have relationships with men, then they are necessarily making a distinction on the basis of sex.
- Workers with the same orientation: Sexual orientation is usually thought of as the combination of a person’s gender and what gender(s) they are oriented toward. But only the latter part is actually relevant. Thus, if an employer hires women who have relationships with men, but fires men who have relationships with men, they are necessarily making a distinction on the basis of sex.
- Sex stereotyping: According to Price Waterhouse v. Hopkins, it’s illegal to fire a worker for not conforming to gender stereotypes. Arguably, one of the most basic stereotypes of gender is heterosexuality, so firing an employee for not conforming to that norm clearly runs afoul.
Two different cases of workplace sexual orientation discrimination await consideration by the Supreme Court, which could even be granted this week. In Zarda v. Altitude Express, the U.S. Court of Appeals for the Second Circuit agreed that it was illegal discrimination under federal sex protections to fire a skydiver for being gay. But in Bostock v. Clayton County, Georgia, the U.S. Court of Appeals for the Eleventh Circuit rejected the claim — in part because it completely ignored the Supreme Court precedents set by Price Waterhouse and Oncale. The circuit split makes it more likely that the Supreme Court will consider these cases in order to resolve the dispute.
Meanwhile, discrimination against transgender and gender non-conforming people seems to all but require a consideration of “sex.” If a transgender person is not recognized under the law according to their gender, then the law would afford them no protections whatsoever. Firing a transgender woman on the premise that she is not actually a woman would clearly be discrimination on the basis of her sex.
Moreover, even if the employer’s religious beliefs rejected the legitimacy of transgender identity, firing an employee on that basis would still run afoul of the legal precedents established by Price Waterhouse: They would be firing a trans woman for not acting enough like a man.
A case of anti-transgender workplace discrimination is also pending consideration before the Supreme Court. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a Michigan funeral home fired an employee after she transitioned on the job because she refused to wear the men’s uniform. The U.S. Court of Appeals for the Sixth Circuit ruled in plaintiff Aimee Stephens’ favor, noting that Stephens would not have been fired for being a cisgender woman seeking to comply with the women’s dress code, meaning that a distinction was clearly made on the basis of sex.
But the Supreme Court’s conservative majority makes it difficult to predict the outcomes of these pending cases. A ruling against any of these LGBTQ victims of discrimination, however, could weaken established protections on the basis of sex, if not require overturning or severely narrowing the ruling in Price Waterhouse.
Is sex the same as race?
One of the most challenging questions Ginsburg faced along the way to securing historic rulings on sexual discrimination was an underlying accusation that her arguments improperly equated the idea of sex with the concept of race. It’s a loaded comparison, chock full of assumptions about both identity categories and burdened by many cultural and political implications. Today, what was old is new again, as those same arguments crop up in cases where sexual orientation and gender identity can be compared to race.
“Gender, like race, is a biological, unalterable trait,” Ginsburg explains to the court in the film. “There is nothing that women are inherently better at than men, nor vice versa.” The judges are not persuaded, joking that men are better at growing beards and women are better at lactation. But, Ginsburg corrects, these distinctions don’t justify the discrimination laid out in the law.
Obviously, every group that has experienced discrimination has a different story to tell. And clear historical parallels cannot be drawn, for example, between how the Transatlantic slave trade came to set the stage for racial discrimination and the way other groups have experienced their own exclusion. But it remains true that that both African Americans and women have experienced some measure of subjugation because of a basic facet of their identity. So, too, have members of the LGBTQ community.
The Supreme Court has previously identified four factors that might point to a “suspect classification” — that is, a group targeted for discrimination in a way that violates their right to equal protection under the law. They are:
- The group has experienced a history of discrimination, prejudice, stigma, and/or stereotyping
- The group possesses an immutable (unchangeable) or highly visible trait.
- The group lacks sufficient power to advocate for themselves politically.
- The group’s distinguishing characteristic does not inhibit it from contributing meaningfully to society.
With these criteria, it’s far easier to recognize the commonalities that sex, race, sexual orientation, and gender identity all share as categories of identity that have been subjected to discrimination under the law.
Nevertheless, opponents of LGBTQ equality have endeavored to draw boundaries around such comparisons. In 2012, several internal memos from the anti-gay National Organization for Marriage (NOM) leaked, revealing a strategy to “interrupt the attempt to equate gay with black, and sexual orientation with race.” In order to “drive a wedge between gays and blacks,” NOM sought to elevate African American spokespeople who would object “to gay marriage as a civil right,” hoping to provoke marriage equality advocates to denounce them “as bigots.” They likewise hoped to convince Hispanics that opposing marriage equality was “a badge of youth rebellion to conformist assimilation to the bad side of ‘Anglo’ culture.”
These kinds of “wedge” tactics remain part of the playbook used by opponents of LGBTQ equality.
In 2017, a coalition of conservative African-American groups developed a campaign to show their support for Jack Phillips, the Colorado baker who refused to sell wedding cakes to same-sex couples. Featuring the exact kind of African-American spokespeople NOM’s memo recommended, the campaign promoted the message that LGBTQ equality is not a civil rights issue.
The Heritage Foundation has also been on the forefront of challenging discrimination comparisons. For example, in October 2017, it hosted a panel called, “Uncivil Discourse: Why the Left is Wrong to Compare Traditional Marriage Supporters to Racists.” Their primary concern appears to be preventing their anti-LGBTQ beliefs from being seen in the same negative light as those held by dyed-in-the-wool racists. As Heritage’s Ryan T. Anderson argued in a Supreme Court amicus belief supporting Phillips’ right to discriminate, “There is no heterosexual-supremacist movement akin to the movement for white supremacy.”
But conservatives are right to be on the defensive, because public attitudes on LGBTQ rights continue to shift against them. In fact, a recent real-life courtroom scene offers a striking juxtaposition to the scrutiny Ginsburg faces in On The Basis Of Sex.
On November 15, 2016, Alliance Defending Freedom attorney Kristen Waggoner was standing before the Washington Supreme Court, arguing that her client, florist Barronelle Stutzman, should be free to discriminate against same-sex couples in her business. One of the first questions she received was about how the discrimination for which she was advocating was any different from the Jim Crow segregation laws that allowed service to be refused to people on the basis of their race — which included justifications on the basis of religious faith. Here, it was the person defending discrimination who was being called upon to justify how not serving gay people was distinguishable from not serving people of color.
Waggoner responded by relying on Justice Anthony Kennedy’s decision in Obergefell v. Hodges, the marriage equality case, in which he claimed that people may oppose same-sex marriage “based on decent and honorable religious or philosophical premises.” When pressed further during rebuttal, Waggoner argued that while white supremacist belief were intolerable, the belief that marriage should be limited to one man and one woman was not.
The Washington Supreme Court was not convinced by Waggoner’s arguments and unanimously ruled against Stutzman.
The underlying implication of the claim — that anti-LGBTQ beliefs are not worthy of condemnation — rests on the notion that society is more tolerant of such discrimination and that far more people still hold such beliefs. But polling continues to counter this perception, increasingly showing that anti-LGBTQ beliefs are, in fact, a fringe position.
Are we ready?
The other major question Ginsburg tackles in the film: Is society ready for the courts to hand down these major changes?
“We’re not asking you to change the country,” Ginsburg tells the court in the film. “That’s already happened without any court’s permission. We’re asking you to protect the right of the country to change.”
While countless LGBTQ legal battles remain unresolved, the public overwhelmingly supports equality. Gallup first found that a majority of Americans supported marriage equality in 2011, four years before the Supreme Court’s ruling in its favor. By means of comparison, back in 1967, when the Supreme Court ruled in favor of interracial marriage, only 20 percent of Americans supported the notion. In fact, it wouldn’t be until 1991 that a majority of Americans were found in support of interracial marriage.
Though a majority of states and the federal government still offer no explicit nondiscrimination protections for the LGBTQ community, Americans overwhelmingly believe that such protections exist. Back in 2011, well before the recent LGBTQ court victories “on the basis of sex,” nine out of ten voters believed there was already a federal law protecting LGBTQ people from discrimination in the workplace. At the time, even 50 percent of people with unfavorable attitudes toward gay people still supported the existence of such protections. Democratic lawmakers in the House are expected to reintroduce The Equality Act later this year to try to make those protections a reality.
After the Supreme Court narrowly ruled in Phillips’ favor in the Masterpiece Cakeshop case last summer, there was a slight uptick in the number of Americans who believe religious beliefs should justify discrimination by wedding vendors. Even still, nearly three out of four Americans support laws that protect LGBTQ people from discrimination. White evangelical protestants constitute one of the only religious populations that still favor allowing for discrimination.
And while Justice Anthony Kennedy may have given equality opponents the benefit of the doubt about the sincerity of their beliefs, researchers have since found that religious beliefs deserve no such credit. A 2017 study found that people who support refusing service to same-sex couples did so regardless of whether it was done for religious reasons. So while conservatives may still clamor for the “religious freedom” to discriminate against LGBTQ people, that’s just a cover for their anti-LGBTQ prejudices.
The public is still learning about who LGBTQ people are and how to treat them fairly. But the courts still significantly lag behind in recognizing the support that is already there — and could be set farther back by the Supreme Court’s new conservative majority.
The last line heard in On The Basis Of Sex is a real-life recording of Ginsburg during her first oral argument before the Supreme Court in 1973. She quotes the abolitionist and suffragette Sarah Moore Grimké, who in 1837 wrote, “I ask no favor[s] for my sex… All I ask of our brethren is that they [will] take their feet from off our necks.”
LGBTQ people — who still face violence, stigma, and discrimination across the country — continue to ask for the same.