Before the US Civil Rights Act passed in 1964, it had been written to protect Americans from
discrimination on the basis of race, religion, color or national origin. The bill was controversial,
not all politicians wanted to see it go through. One of those people was a Representative from
Virginia named Howard W. Smith, who proposed an amendment, to insert the word Sex
He snuck it into Title VII of the bill, which protects people from discrimination at work.
And he did it because he thought that adding sex discrimination protections would make
the bill so unpopular that it wouldn t get enough votes to pass. But it didn t work.
Congress passes the most sweeping Civil Rights bill ever to be written into the law.
Instead the inclusion of the word in the Civil Rights Act set up a different battle.
Because the Civil Rights Act says nothing about sexual orientation or gender identity,
for the past 50 years, the US has been debating the legal definition of sex and whether it
protects LGBTQ Americans from discrimination, too.
That answer depends on who you ask and it hangs on the outcome of the 2020 election.
What sex discrimination meant in the context of the Civil Rights Act of 1964 was that,
women, who were becoming a larger part of the work force, couldn t be discriminated
against just because of their sex. At the time it didn t explicitly protect LGTBQ people.
But over the years, a wave of activism and a string of legal battles helped interpret
the Civil Rights Act to include protections for LGBTQ Americans.
And it all came down to the word sex and what it means to discriminate on that basis.
It's been a way for us to obtain protections through litigation that we have not been able
to obtain explicitly through congressional action.
This is Sasha Buchert, she s a senior attorney at Lamda Legal, which litigates sex discrimination
cases for the LGBTQ community. The pivotal case would be Pricewaterhouse
v. Hopkins. The Supreme Court ruled on it in 1989, and
it helped expand the definition of sex discrimination It involved a woman named Ann Hopkins who
worked at an accounting firm and who, by all accounts was highly successful.
Ann was competing against 87 male applicants for a promotion to partner. And someone from
the hiring committee told her how she might get the job:
To dress more femininely, get her hair styled, wear jewelry, and there were other folks who
were throwing around words that she was know, quote, macho .
She was rejected for partnership twice, so Hopkins sued her company, using the sex discrimination
clause in the Civil Rights Act. And she won, which expanded the kind of discrimination
that Title VII can protect against, based on something called sex stereotyping.
The court ruled that "an employer who acts on the basis of a belief that a woman cannot
be aggressive, or that she must not be, has acted on the basis of gender."
And in 2004, another court ruling expanded this logic even further, to explicitly protect
a trans person. The Smith decision involved a firefighter
in Salem, Ohio, who came out and had a pretty stellar record. She began her gender transition,
meaning that she was born male and was transitioning to live in accordance with her female gender
identity. Ms. Smith sued her employer for sex discrimination
when she found out she would be fired, And she won, based on the argument that discrimination
against someone who doesn t identify with his or her gender is no different from the
discrimination directed against Ann Hopkins who, in sex-stereotypical terms, did not act
like a woman. So that was a significant victory, especially
at the time. I think it's important to remember the courage
of someone to take that step in the early 80 s in a firefighting outfit.
These cases have helped protect countless members of the LGBTQ community who have had
to fight these legal battles in the absence of a federal law that grants them protections.
There's no substitute for those explicit protections. You know, I lived in California and I lived
in Oregon. And, you know, there's just no ambiguity about the fact that trans people
are protected under the law in those states and that's the way it should be federally.
Oregon and California are two of the 27 states that have their own non-discrimination laws
based on gender identity or sexual orientation. One state only has sexual orientation protection.
22 states don t offer any protections at all. That ambiguity makes the position of the White
House on this issue really important. Starting in 2014, the Obama administration
signed executive orders to reflect how sex discrimination was being interpreted in the
courts. And those rules impacted all these federal agencies.
For example, the Department of Justice wrote that the best reading of Title VII s prohibition
of sex discrimination is that it encompasses discrimination based on gender identity, including
transgender status. The Department of Defense said that transgender
individuals shall be allowed to serve in the military."
And the Department of Education issued a letter that said schools that receive federal funding
should allow students to use the bathroom that aligns with their gender identity.
But in 2017, when President Trump took office, his administration reversed all those rules,
explicitly saying that discrimination does not encompass gender identity.
Meaning "sex" is limited to biological sex determined at birth.
And that contradicts how the courts have evolved over the past 50 years.
If you're gonna just decide to take steps like that without complying with the rule
of law, that's really dangerous for our democracy. Then in 2020 came another Supreme Court case
that made the courts interpretation even clearer. A major Civil Rights decision out of the United
States Supreme Court. The biggest opinion for gay rights in this
country since 2015 when of course same sex marriage was legalized.
The case involved a juvenile court employee in Clayton County, Georgia, a state that doesn
t offer LGBTQ discrimination protections. It was my dream job doing what I loved and
making a difference on the lives of children that came through the system. Then one day,
after 10 years of employment, I decided to join a gay recreational softball.
Gerald had posted about the softball league at work.
And within six months of making that decision, I lost my job. I lost my job because I'm gay.
I was devastated. You know, I lost my income. I'd lost my medical insurance. And that was
a time when I was still recovering from prostate cancer. So it was a very difficult time.
A man who says he was fired from his job because he s gay takes his case to the US Supreme
Court tomorrow. As I started seeing it on on television
The Supreme Court has ruled that LGBT Americans are protected by the anti discrimination laws.
My heart stopped for a moment. I was just elated.
A landmark ruling for gay and transgender workers.
The LGBTQ+ community celebrated outside the Supreme Court today.
It opens a door for all kinds of lawsuits against discrimination.
This decision made the courts' logic on LGTBQ protections explicit: sex discrimination includes
discrimination for sexual orientation, too. The legal fight for LGBTQ people to be protected
from sex discrimination took half a century in the courts.
But whether the White House acknowledges that evolution will depend on the outcome of the
2020 election. It does send a message, you know, to the people
in the community that they're not protected and invites people to discriminate and just
creates a hostile environment for our communities. Joe Biden has given every indication he plans
to reverse Trump s rules, on his campaign site, and in town halls.
How will you as president reverse this dangerous and discriminatory agenda and ensure that
the rights and lives of LGBTQ people are protected under US law?
I would flat out just change the law, I would eliminate those executive orders.
That change would acknowledge what the courts have decided that the "the definition of discrimination
based on sex should include the LGBTQ community" instead of leaving them to continue their
fight.