Earlier this week, the New York Times reported that a Trump administration memo seeks to define the word “sex” as “either male or female, unchangeable, and determined by the genitals that a person is born with.” On Wednesday, the administration filed a brief in the Supreme Court laying out its legal rationale for its conclusion.
The brief is, to put it mildly, a dumpster fire. It ignores the plain text of the law, attempts to dismiss two seminal Supreme Court decisions, and completely disregards the facts of one of those cases. Should the Trump administration’s effort to redefine “sex” succeed, moreover, it would have profound implications for American civil rights laws.
Numerous federal laws prohibit discrimination “because of . . . sex,” or “on the basis of sex,” or otherwise provide that “sex” discrimination is not allowed. The Trump administration’s definition would foreclose civil rights suits for many transgender victims of discrimination by employers, schools, or even health providers. Moreover, it would strip them of rights they already enjoy under the language used by existing laws.
Just as significantly, the Trump administration’s argument raises serious questions about whether the words of the law matter so long as the Supreme Court is dominated by conservative activists.
These activists often claim that they and they alone pay heed to the text of the Constitution and any laws enacted pursuant to it. “We are governed by laws, not by the intentions of legislators,” Justice Antonin Scalia wrote in 1993. Or as Neil Gorsuch, who currently occupies Scalia’s seat, put it in a more recent dissenting opinion, “at the end of a long day, I just cannot find anything preventing us from applying the statute as written — or heard any good reason for deviating from its terms.”
Well, Neil, here’s your chance to prove that you actually care about the text of the law when that law supports a liberal outcome. Because the Trump administration offers no good reason for deviating from the law’s terms.
What is “sex?”
The Trump administration laid out its legal argument in a case called R.G. & G.R. Harris Funeral Homes v. EEOC. That case involves a trans woman, Aimee Stephens, who was fired because of her decision to transition. She sued under Title VII of the Civil Rights Act of 1964, which provides that an employer may not “discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”
Thus, the key issue in this case is whether an employer’s decision to fire Stephens constitutes discrimination “because of” sex.
The Trump administration argues that Title VII should not apply to this case because “when Title VII was enacted in 1964, ‘sex’ meant biological sex; it ‘refer[red] to [the] physiological distinction’ between ‘male and female’” — a definition it extracts from a 1958 edition of Webster’s New International Dictionary.
But even if they are right about this claim, their argument is a red herring. The crucial word in Harris Funeral Homes is not “sex,” it is the two words “because of.”
Think of it this way. Let’s imagine that the Trump administration is correct. That is, let’s pretend for the moment that the word “sex” has only one meaning, and that meaning refers only to what kinds of genitals a person had when they were born. A baby with a penis shall evermore be deemed “male,” while a baby with a vagina is eternally a “female.”
Even under this narrow definition of the word “sex,” Stephens still wins her case.
The reason why — as a federal appeals court that ruled in Stephens’ favor explained — is that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” Stephens’ sin, according to her employer and to the Trump administration, is that she is a man who presented as a woman. But Stephens’ employer would not have fired an employee who was born with a vagina for presenting as a woman. Only “male” employees are subject to this sanction.
Thus, even under the Trump administration’s definition of “sex,” firing Stephens still violates Title VII. Even if Stephens were a man, she was fired because she engaged in conduct that women are allowed to engage in. That’s discrimination “because of” sex.
It must be nice to have Scalia on your side
In fairness, the Trump administration is probably correct that the lawmakers who voted for Title VII in 1964 did not have anti-trans discrimination on their mind. But so what? The issue at hand in Harris Funeral Homes is not the secret intentions of the elected officials behind a civil rights law.
Justice Scalia made this point in Oncale v. Sundowner Offshore Services, a case involving a man who was harassed, “physically assaulted . . . in a sexual manner,” and threatened with rape by his male co-workers. Though Scalia’s majority opinion acknowledges that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” he explained that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”
“It is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” he concluded.
Thus, it doesn’t matter that the authors of Title VII probably weren’t concerned with male-on-male harassment when they wrote that law. And it similarly does not matter that Title VII was not written specifically to combat anti-trans discrimination.
The question is whether the words “because of . . . sex” are expansive enough to encompass Stephens’ case. And the answer is that they are.
It’s worth noting that there is another reason why Stephens must prevail. In Price Waterhouse v. Hopkins, the Supreme Court considered a case brought by Ann Hopkins, a high-performing employee at a major accounting firm who claimed she was denied a partnership because she was viewed as too masculine. Notably, “the partner responsible for informing Hopkins of the factors which caused her candidacy to be placed on hold indicated that her ‘professional’ problems would be solved if she would ‘walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.'”
Price Waterhouse held that this kind of “sex stereotyping” is not allowed. Title VII does not simply prohibit employers from sanctioning an employee because she is a woman (or because he is a man), it also prohibits employers from sanctioning a woman because she does not behave in a traditionally feminine way (or from sanctioning a man because he does not behave in a traditionally masculine way).
Which brings us back to Aimee Stephens. Again, even if you accept the Trump administration’s definition of the word “sex,” Stephens should prevail under Price Waterhouse. If Stephens were a man, then she’d be a man who pervasively refuses to comply with male gender stereotypes. That is an unlawful reason to fire her.
The Trump administration’s arguments, in other words, fail on their own terms. Even if you accept their suggestion that someone’s “sex” is permanently defined by the configuration of their genitals at birth, Aimee Stephens still wins her case. In their zeal to deny the very existence of trans people, the Trump administration forgot to actually read the law.