How the First Forty Years of Circuit Precedent Got Title VII\u27s Sex Discrimination Provision Wrong

The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.” This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title VII forbids an employer from insisting that men or women conform to sex stereotypes. This account has important implications for the pending cases, as well as for social movements that seek to disable prejudice

They, Them, and Theirs

Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But the idea of nonbinary gender as an identity itself only appears at the margins of U.S. legal scholarship. Many of the cases recognizing transgender rights involve plaintiffs who identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend those categories. The increased visibility of a nonbinary minority creates challenges for other rights movements, while also opening new avenues for feminist and LGBT advocacy. This Article asks what the law would look like if it took nonbinary gender seriously. It assesses the legal interests in binary gender regulation in areas including law enforcement, employment, education, housing, and health care, and concludes these interests are not reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts

Pregnant People?

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have benefits in terms of equality for expectant LGBT parents. To further this project, this Response asks what unsexing pregnancy might look like for different types of pregnant people: (1) pregnant individuals who do not identify as women, (2) expectant couples in which one partner is pregnant, (3) expectant parents engaging a surrogate or pursuing adoption, and (4) pregnant people who rely on networks of family and friends for support and caregiving. It argues that, in each of these contexts, the extension of pregnancy benefits raises a unique set of questions. But across all of these contexts, it will take more than simply making existing pregnancy rules gender neutral to achieve equality

Examining spiritual development in collegiate athletes participating in individual and team sports

The purpose of this explanatory study was to examine levels of spirituality self-reported by collegiate student-athletes participating in individual and team sports. Student-athletes’ levels of spirituality were measured using Astin’s (2004) College Students’ Beliefs and Values Survey (CSBV). Conceptually, this study was grounded in the works of Fowler (1981) and Parks (2000), leading researchers in measuring spiritual development. The sample of student-athletes was taken from the University of Louisiana at Lafayette, a large, doctoral granting, high research activity, NCAA Division I institution. The data for this study was collected at the end of the spring semester on April 27, 2009 at a presentation on the balance between “student” and “athlete” with a particular focus on life after athletics in terms of career choices. The CSBV survey was administered prior to the speaker’s presentation. Of the 338 student-athletes who attended the presentation and were given a survey, 226 completed the CSBV survey and 200 were included in the study. Student affairs researchers have recently begun to focus on the roles of religion and faith as legitimate areas for analysis (Love & Talbot, 1999; Love, 2001; Chickering et al., 2006). With calls from UCLA’s Higher Education Research Institute and Chickering et al. (2006) to research trends in contemporary college students’ spiritual development processes, the time was ripe to examine the self-reported levels of spirituality of student-athletes. While results of this study were not statistically significant in regard to finding differences between groups of student-athletes participating in team and individual sports, findings indicating student-athletes are developing spiritually in college were significant. Student-athletes in the current study reported higher mean scores in half of the subscales measured by the CSBV survey as compared to Astin’s (2007) original sample population of college students nationwide. This particular finding is critical to this study, in that it solidifies the fact that student-athletes are developing spiritually and reporting higher mean scores than the average student body. Implications resulting from this finding include a need for higher education administrators to provide opportunities for spiritual development to collegiate student-athletes and to monitor this developmental process throughout student-athletes’ collegiate careers

Explicit Bias

In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts have refused to consider evidence of biased statements by government officials in cases alleging, for example, that facially neutral laws were enacted for the express purpose of singling out Muslims. Courts outright ignore explicit bias when they consider intentional discrimination to be justified by goals such as law enforcement. And courts have developed a “stray remarks doctrine” in employment discrimination cases to prevent juries from hearing evidence of explicit bias. This Article identifies and criticizes legal arguments against consideration of explicit bias, including concerns about the feasibility of inquiries into intent, worry about undermining otherwise legitimate policies, the desire to avoid chilling effects on free speech, and the fear that confronting explicit bias will result in backlash. It argues that discrimination law should dispense with doctrines that shield explicit bias from consideration

Beyond Equality? Against the Universal Turn in Workplace Protection

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of liberty or dignity. I refer to this trend as the universal turn in workplace protections. This Article urges caution with respect to the universal turn. Drawing on feminist legal and political theory, it provides a set of questions to ask in evaluating proposals to universalize protections. It concludes that anti-bullying and work-life proposals are likely to dilute feminist workplace gains and mask inequality. If the universal rule swallows the anti-discrimination rule, the transformative potential of requiring employers and the public to scrutinize the workplace for gender discrimination is lost. Personality conflicts are seen as no worse than sexual harassment, and recreational pursuits are supported to the same extent as caretaking responsibilities. The benefits of sexual harassment law and leave policy are likely to be diluted. I therefore oppose universal approaches to harassment and work-life conflicts that would simply expand civil rights protections to cover harms other than discrimination. Instead of the universal turn, this Article proposes a hybrid approach focused on inclusivity that would expand protections incrementally without abandoning equality

Explicit Bias

In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts have refused to consider evidence of biased statements by government officials in cases alleging, for example, that facially neutral laws were enacted for the express purpose of singling out Muslims. Courts outright ignore explicit bias when they consider intentional discrimination to be justified by goals such as law enforcement. And courts have developed a “stray remarks doctrine” in employment discrimination cases to prevent juries from hearing evidence of explicit bias. This Article identifies and criticizes legal arguments against consideration of explicit bias, including concern about the feasibility of inquiries into intent, worry about undermining otherwise legitimate policies, the desire to avoid chilling effects on free speech, and fear that confronting explicit bias will result in backlash. It argues that discrimination law should dispense with doctrines that shield explicit bias from consideration

Protected Class Gatekeeping

Courts routinely begin their analyses of discrimination claims with the question of whether the plaintiff has proven he or she is a “member of the protected class.” Although this refrain may sometimes be an empty formality, it has taken on real bite in a significant number of cases. For example, one court dismissed a claim by a man who was harassed with anti-Mexican slurs because he was of African American rather than Mexican ancestry. Other courts have dismissed sex discrimination claims by LGBT plaintiffs on the ground that LGBT status is not a protected class. Yet other courts have dismissed claims by white people alleging they were harmed by white supremacist violence and straight people alleging they were harmed by homophobic harassment. This Article terms this phenomenon “protected class gatekeeping.” It argues that protected class gatekeeping is grounded in dubious constructions of antidiscrimination statutes, and that its routine use prevents equality law from achieving its central aim: dismantling sexism, racism, homophobia, religious intolerance, and other such biases. While past scholarship has identified certain forms of protected class gatekeeping, it has not recognized the scope of the problem or addressed the progressive intuitions that underlie it. Critical examination of protected class gatekeeping is of pressing importance as legislatures, courts, and legal scholars debate new statutory language and doctrinal frameworks for discrimination claims