//  7/31/17  //  Commentary

Updated at 6:52pm on July 31, 2017

The day after Donald Trump announced a heartless and irrational ban on transgender people in the military on Twitter, the Trump Department of Justice needlessly intervened in a routine employment discrimination case to argue that Title VII does not prohibit discrimination on the basis of sexual orientation.  These gratuitous actions make Trump’s hostility to LGBT individuals unmistakable.  Moreover, by arguing to rollback civil right protections that many courts have recognized, the Department of Justice has abandoned the role its name denotes to become a powerful enemy of Justice.

Several years ago for the Department of Justice to assert that Title VII does not prohibit sexual orientation discrimination might have been seen as merely cautious; today it can only be apprehended as reactionary and bigoted.  Basic equality for gay men and lesbians is no longer an issue that predictably divides liberals and conservatives, nor one on which decent people differ.  The allegations in the case in which the Justice Department weighed in demonstrate why it is not.  According to the New York Times, Donald Zarda, a sky diving instructor, was fired after he told a customer he was gay and the customer’s husband complained.  Mr. Zarda mentioned his sexual orientation in order to “assuage any awkwardness” the female customer might feel at being strapped to him during a skydiving jump.  In other words, Zarda was trying to make his customers as comfortable as possible—a sensible tactic that might have worked had he not been dealing with a homophobe.  His employer then made that bigotry the basis of a decision to fire Zarda.   Mr. Zarda deserves the chance to prove these claims; if true, he deserves a legal remedy.

Some will insist that because the text of Title VII does not expressly mention sexual orientation discrimination, the law can’t prohibit it.  But Title VII’s terse and abstract language has always been interpreted in the light of the practical realties of the workplace. 

Following in the tradition of pragmatic and contextual interpretation that recognized sex harassment and sex stereotyping as forms of sex discrimination, the 7th Circuit held in Hively v. Ivy Tech, that Title VII’s prohibits an employer from discriminating on the basis of sexual orientation.  Although the 7th Circuit was the first federal court of appeal to so hold, the decision was not a significant departure from past precedent or conventional civil rights jurisprudence.   The EEOC had already taken the position that Title VII prohibits discrimination based in sexual orientation and many lower courts had held that it prohibits discrimination based on transgender identity.  In a sense, the real surprise was that it took the federal courts as long as it did to reach this sensible and humane conclusion.

Judge Posner—a well-known conservative—explained why Title VII prohibits sexual orientation discrimination in a refreshingly frank concurring opinion in Hively.  He wisely pointed out that courts must interpret statutes in light of current knowledge and values.  Nowhere is this more obvious than in the context of sex discrimination, which has always been interpreted in light of practical considerations and contemporary cultural expectations.  

This pragmatic flexibility is not one-sided: it can favor employees, as in Hively, or employers.  For instance, courts have interpreted the narrow statutory exception for jobs for which sex is a Bona Fide Occupational Qualification (BFOQ) to account for social mores, allowing employers to make reasonable sex based distinctions.  Courts have permitted employers to discriminate because of sex for reasons of modesty—for instance, hiring only women for positions that involve undressing and bathing female hospital patients or working in women’s restrooms and locker rooms.  More controversially, some have also allowed employers to discrimination for purposes of sexual titillation; for instance, allowing the Playboy clubs to hire only women to serve as cocktail waitresses.  The law also allows sex specific workplace dress codes, provided they are equally burdensome for both sexes. 

Similarly, judicial interpretation of Title VII’s text led to the prohibition of sex harassment—now an accepted part of the law and one of the most important and transformative in modern employment discrimination doctrine.  And courts, interpreting the law in light of new information about workplace gender dynamics, prohibited employers from requiring stereotypical gender behavior: after the 1989 Supreme Court opinions in Price Waterhouse v. Hopkins this doctrine became one of the most important guarantees of gender equity in employment.

When Congress passed the Civil Rights Act in 1964—and in 1991 when Congress last amended Title VII—few gay men and lesbians could afford to be open about their sexuality and as a result the most offensive stereotypes went unchallenged.  Today, because of experiences with openly gay friends and colleagues and more sympathetic portrayals in the media, most people understand that, as Judge Posner puts it, “homosexuality is nothing worse than failing to fulfill stereotypical gender roles”— in particular the one that requires intimacy only with a member of the opposite sex.  

There is probably no civil rights issue on which public opinion has changed more in the last 50 years.   It’s time for the law to reflect that change.  And for those who had hoped a Trump administration would be moderate or harmless with respect to civil rights, it’s time to face facts: this President is an enemy of equality and a threat to justice.

Richard Thompson Ford | Professor of Law, Stanford Law School

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