Newsweek - USA (2019-10-04)

OCTOBER 04, 2019 NEWSWEEK.COM 29

JUSTICE

argument. The Supreme Court has repeatedly ruled in the past

that an employer discriminates “because of...sex”—the literal text

of Title VII—when it treats an employee “in a manner which,

but for that person’s sex, would be different.” Lawyers for the

LGBTQ employees say they obviously meet that test. As lawyers

for fired Clayton County employee Bostock put it: “When an

employer fires a female employee because she is a lesbian—i.e.,

because she is a woman who is sexually attracted to other wom-

en—the employer has treated that female employee differently

than it would treat a male employee who was sexually attracted

to women.” Thus, but for her sex, she wouldn’t have been fired.

Similarly, attorneys for Aimee Stephens, the transgender funeral

director, contend: “Harris Homes would not have fired her for living

openly as a woman if she had been assigned a female sex at birth.”

Thus, but for her biological sex, she wouldn’t have been fired.

The employers respond that both arguments are wrongheaded.

The arguments lose sight, they claim, of what was the obvious

central goal of Title VII: that an employer not favor one sex over

the other. So long as an employer discriminates against all ho-

mosexuals, for instance—i.e., both gay men and lesbians—the

employer is not favoring either sex over the other. Similarly,

so long as employers discriminate against all transgender

MARCH OF TIME

Clockwise from top:

President Barack Obama

and Judge Merrick Garland

in 2016; three years later

45,000 people took part

in a pride march starting

at the Stonewall National

Monument in New York

City; transgender funeral

director Aimee Stephens.

1967

Loving v. Virginia.
The Supreme Court struck
down state laws forbid-
ding interracial marriage
for violating the Equal
Protection Clause of the
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the case established the illegality of “associational
discrimination”—discrimination based not necessar-
ily on one’s own race, but on the race of the person
one associates with. Discrimination against gays
and lesbians is analogous, it is argued, in that it is
based on the sex of the person one is attracted to.

1971

Phillips v. Martin

Marietta Corp. The

Supreme Court held that

the company’s policy

against hiring women

with preschool-age chil-

dren, when it had no such

rule for men, violated Ti-

tle VII. The case has sub-

sequently been cited as

an early instance of Title

VII being applied to pro-

hibit “sex-stereotyping.”

1972

Title VII was expanded

to ban discrimination by

public employers. The

original law had covered

only private employers.

1978

Title VII was amended

to clarify that

discrimination “because

of...sex” includes

discrimination “on the

basis of pregnancy,

child-birth, or related

medical conditions.”

(The amendment

overruled a 1976

Supreme Court ruling

that had interpreted the

phrase more narrowly.)