Newsweek - USA (2019-10-04)

OCTOBER 04, 2019 NEWSWEEK.COM 27

The Evolving History of the Law

there is no dispute that most of the legislators who

wrote and voted for Title VII never envisioned targeting discrim-

ination on the basis of sexual orientation or gender identity. In

1964, most states still criminalized homosexual conduct and the

term “gender identity” was largely unknown. In the 1970s a con-

sensus arose among the federal circuit courts that Title VII (or

other, similarly worded federal antidiscrimination statutes) did

not reach sexual orientation cases. Courts also rebuffed the tiny

number of gender identity cases that arose.

By the early 2000s, however, the legal landscape had changed.

Judges began to reassess earlier assumptions in light of, primarily,

two intervening U.S. Supreme Court rulings. In 1989, in the land-

mark Price Waterhouse v. Hopkins case, the Court decided that Title

VII barred discrimination based on sexual stereotyping. There, in de-

nying a promotion to Ida Hopkins, partners at the accounting firm

had described her as too “macho” and “aggressive,” and had suggest-

ed she should learn to “walk more femininely, talk more femininely,

dress more femininely, wear make-up, have her hair styled, and wear

jewelry.” Courts began to consider whether sexual orientation and

gender identity cases were simply extreme cases of sexual stereotyp-

ing: inappropriately assuming that all men should date women, for

instance, or that all people assigned female sexual characteristics at

birth should identify as women for the rest of their lives.

The other key, intervening Supreme Court precedent was a

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