I Lost the Battle, but We Won the War

NYC in Protest of Donald Chump February 2017

Last year I had to write a paper regarding the arguments before the Supreme Court interpreting the meaning of the word sex within the Civl Rights Act of 1964. I scored terribly. Literally bottom of the curve. Law professor’s really don’t like when you use hashtags in papers, or at least this one didn’t. However, today, the Supreme Court announced their ruling, embracing discrimination on the basis of sexual orientation and transgender status as discrimination on the basis of sex. MAJOR. And I, release an excerpt of my paper which one man thought was a complete work of trash.

So…does discrimination on the basis of sex include discrimination on the basis of sexual orientation and/or transgender status?

Well, unless an employee is fired because they are asexual, discrimination on the basis of sexual orientation will always implicate the biological sex of the employee and the biological sex of another person.[1] That the adverse employment action implicates the biological sex of the employee, and the sex of another person completely unrelated to the workplace sounds no less in the basis of sex than it would had the employer said, “We fired you because you are female, not because you are a lesbian.”[2] Therefore when an employer acts adversely towards an employee on the basis of their homosexual orientation, the adverse action will always be on the basis of sex in violation of Title VII.[3]

The other side will have you believe that the inquiry lives and dies on: we did not fire you because you are female, we fired you because you are gay, and because your being gay has nothing to do with your biological state of being a female (we love women, just not lesbians!), you weren’t fired because of sex, and if you weren’t fired because of sex, your rights were not and cannot be violated under Title VII.[4] Which, at first blush is not wrong. Employees all over the country are being fired for being male, and yet a whole crop of other employees are not being hired for being gay. On the grill of life, everyone is getting burned; just in grossly disproportionate amounts. 

Upon closer inspection though this house of cards just cannot stand. And it cannot stand because it is staggeringly incomplete. The employee was fired because she is gay, and she is gay because she is intimate with people of the same sex outside of work. And unless and until we as a society, and not just these employers, can come up with an answer to the question of “what makes a human gay” without so much as whispering about the person’s biological sex matching that of the persons she has sex with, while not at work, there can be no world where we fired you because you are gay and you’re not gay because of your sex.[5] That’s just not this life, not in this country. Not in 1964, not now.[6] Which ultimately means we either come up with a whole new understanding of what makes a human gay, or we stop firing humans because they are gay. Which already happens daily. All over this country employers are firing their gays for the exact same reasons they fire their straights. For being late to work, stealing from the company, not making quotas, not showing up, generally being shitty, you name it. Literally any other legitimate employment reason from the menagerie of employment decisions unrelated to a person’s biological sex. Which is just a win win for all. Because not only are the employers not in violation of a federal statute already protecting the rights of same sex oriented individuals (#since1964), they haven’t gone and created a new protected class in the process, they very thing they fear and rail against.[7] Which then just really turns this whole thing on its head, because the employers who aren’t firing their gays for being gay, don’t even need sex under Title VII to mean sexual orientation. Which stands to reason then that the only people who need the floor of Title VII set at sexual orientation are the desperate few turning the floor into a basement by continuing to fire people for being gay in 2019. 

But wait, there is but one more option for the megalomaniacal employer. America right, all about options. They can… fire employees for being gay in a country where being gay means having sex with persons of the same sex and pay the piper for violating Title VII.

Discrimination on the basis of transgender status is discrimination on the basis of sex because the individual is neither of the male nor of the female sex, and when discrimination is on the basis of sex it violates Title VII.[8] There is no doubt that at the time Title VII was passed the meaning of sex in the minds of those legislating was that of the employee’s state of being biologically, and reproductively, male or female.[9] There is also no doubt, from either side,[10] that at this same point in time, the very notions of gender and identity were just taking shape conceptually, so of course they would not be both burgeoning and at the same time a full blown discourse warranting legal protection from the 1964 Congress.[11] Which essentially just means that right now all sides agree that sex in 1964 was the biological state of being male or female because that was what was commonly understood and meant at the time. Which is great because in 1964, humans, and Americans in particular were also fully aware that a third biological morphology presents in humans, and other species all over this very planet.[12] Which means that if the sex in 2019 must be the sex of 1964, the sex of 1964 was, and the sex of 2019 is: (1) the state of being biologically male, (2) the state of being biologically female, and (3) the state of being neither biologically male nor biologically female, because the human is a somewhat both. Therefore, because transgendered persons are also humans that are born a unique combination of male and female, they also fit within the third morphology understood as sex in1964; and discrimination on the basis of such individual’s sex as being neither male nor female is very much a violation of Title VII in 2019.   

Colloquially, and doggedly, we know these individuals as hermaphrodites.[13] Comedically we refer to “it” as Pat.[14] Nowadays however this particularly unique panoply of humans prefer to be called the intersexed.[15] Neither male nor female, but some glorious combination of the two; and try as we might to deny their existence both in life and the law, we cannot and should not for a moment more. They’ve only been here since the dawn of what we know to be life on this planet we call Earth.[16]

I should pause for a moment and address the fact that Aimee Stephens is not an intersexed individual; nor is anyone suggesting that she is. The point here is that like the intersexed who are not fully female nor fully male, humans who are, or who identify as transgender and/or transsexual are also not fully female nor fully male.[17] There is just no way they can be. Their outward physical appearance is that of their natal sex, while their own brain inside their own body processes their sex to be discordant with that of their presenting natal sex.[18] Which ultimately means that unless aliens have been making their way to Earth, cutting open humans’ brains and swapping them out for computers or robots which tell the human that they don’t feel like their outward appearance, that a human brain perceives itself to be different from the sex genetically mapped onto the body, is no less a function of biology, the very same function of biology that formed a human with both testicles and a clitoris, or a chromosomal combination of XX and XY.[19]

And if we as a people are so immutably fixed to the meaning of sex at the time Congress enacted Title VII, well then this Court cannot simply overlook the facts that by 1964 biological sex meant to a very many in the sciences, medicine, academia and anthropological communities, the state of being male, the state of being female, and the state of being neither male nor female. And there is no legitimate reason why the sex of today would just now in 2019 carve out from its meaning a group of individuals laboring every day, like the intersexed, under the weight of existing in a country that denies them the social, political, and employment opportunities solely on the basis that they happened to be born not biologically male, not biologically female, but uniquely both and neither all at the same time.

Which means we can all put to rest any remaining issues over whether this Court will be overstepping into policy by interpreting sex to include transgendered persons. The Court will do no such thing because Congress already did. When it codified sex as an actionable basis for adverse employment decisions, it did so for those who are discriminated on the basis of being neither female nor male, and were this Court to hold otherwise, it would steam roll the definition of sex in 1964, the definition of sex in 2019 and the cannons of science, biology, medicine and history throughout the ages leading up to 1964. Not to mention the fact that any finding to the contrary as the employers would have this Court do, would be an argument that when Congress passed Title VII it did so only to create equal employment opportunities amongst those who are truly male, and those who are truly female, and to the exclusion of all those not truly male or female. Which just can’t be. Not then, not now. Pat has its bills to pay, and Uncle Sam sure does want his share of the pie. 

[1] Asexuality is now widely considered a sexual orientation and is marked by the absence of sexual desire for other humans, regardless of their sex. Merriam-Webster; Wikipedia. This is distinguishable from the other sexual orientations that involve sex with humans, such as heterosexuals, homosexuals, bisexuals, and pansexuals. 

[2] “A ‘but for’ cause is a ‘minimum requirement’ for causation, but it may not be the only factor,” “it therefore does not matter whether an employer can identify another ‘variable,’ so long as, but for the employee’s sex, she would not have been subjected to adverse action. Bostock v. Clayton County, Georgia, 2019 WL 4464221 (U.S.), 6 (U.S., 2019).

[3] Homosexuality is the “tendency to direct sexual desire toward another of the same sex,” and “sexual activity between persons of the same sex.” Merriam-Webster. Because of the reality that employers are not firing employees for being asexual, they may fire employees for being pansexual, or bisexual if the employee is also homosexual, and are definitely firing heterosexual employees, but not at all because they are heterosexual, the focus of this paper is on people who are actually being discriminated against- the same sex oriented. 

[4] “[T]he original public meaning of Title VII prohibits employment discrimination because of an individual being male or female and not because of an individual’s sexual orientation.” “[S]exual orientation and sex are separate and distinct concepts. Moreover, an employer who makes a decision based on homosexuality, for example, is not motivated by the employee’s sex, but rather by the employee’s sexual orientation. Bostock v. Clayton County, Georgia, 2019 WL 3942896 (U.S.), 6, 7 (U.S., 2019).

[5] Excluding claims by asexual.

[6] The “first known use” of homosexuality defined footnote 3 was “1892.” Merriam-Webster.

[7] “Relying on Zarda and Hively, Bostock advances various legal theories in hopes of persuading the Court to do what Congress has declined to do for approximately forty-five years: amend Title VII by adding sexual orientation as a protected class.” Bostock v. Clayton County, Georgia, 2019 WL 3942896 (U.S.), 7 (U.S., 2019).

[8] “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female.” Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 571 (6th Cir. 2018).

[9] Sex is “the property or quality by which organisms are classified according to their reproductive functions.” R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, 2019 WL 3958416 (U.S.), 19 (U.S., 2019).

[10] “Stephens concedes for purposes of argument that the word ‘sex’ in 1964 meant biological sex, not transgender status.” R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, 2019 WL 3958416 (U.S.), 19 (U.S.,2019).

[11] According to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition: DSM-5, “[t]he need to introduce the term gender arose with the realization that for individuals with conflicting or ambiguous biological indicators of sex (i.e. intersex) the lived role in society and/or the identification as male or female could not be uniformly associated with or predicted from the biological indicators, and later that some individuals develop a variance with their uniform set of classical biological indicators.”

[12] See generallyhttps://en.wikipedia.org/wiki/Hermaphrodite#cite_note-pmid17089966-6; there are roughly estimated 65,000 hermaphroditic animal species. See also, “The Self-healing Blob with nearly 720 Sexes,” https://www.cbsnews.com/news/the-blob-paris-zoo-debuts-mysterious-self-healing-blob-nearly-720-sexes/See also, “Gender Bending Fish,” https://evolution.berkeley.edu/evolibrary/article/fishtree_07See also, “The History Behind the Intersex Rights Movement,” https://isna.org/faq/history/See finally, “Answers To Your Questions About Individuals With Intersex Conditions,” https://www.apa.org/topics/lgbt/intersex.pdf

[13] See generallyhttps://www.britannica.com/science/hermaphroditismSee also, “We Used to Call Them Hermaphrodites,” https://www.nature.com/articles/gim200711.

[14] See generally, “It’s Pat,” the movie; https://en.wikipedia.org/wiki/It%27s_Pat; and see https://www.imdb.com/title/tt0110169/?ref_=fn_al_tt_1

[15] See generally, the film “Intersexion,” https://www.intersexionfilm.com/about-2/; and see https://www.imdb.com/title/tt2157302/?ref_=nv_sr_2?ref_=nv_sr_2

[16] The “Greek historian Diodorus Siculus wrote of the mythological Hermaphroditus in the first century BCE;” “European societies, Roman law, post-classical canon law, and later common law, referred to a person’s sex as male, female or hermaphrodite, with legal rights depending on the characteristics that appeared most dominant;” the “foundation of common law, the 17th Century Institutes of the Lawes of England described how a hermaphrodite could inherit ‘either as male or female, according to that kind of sexe which doth prevaile;’” and throughout “the Victorian era, medical authors introduced the terms “true hermaphrodite…” Wikipedia on Hermaphrodite. See also, Wikipedia on Richard Goldschmidt who coined the term intersexuality in 1917 in his work “Intersexuality and the endocrine aspect of sex.” See also, Wikipedia on Alexander Polycleitos Cawadias, the “Greek physician who worked mainly in England [and] was the first to suggest replacing the term “hermaphrodite” with ‘intersex,” arguing in his book “Hermaphroditus the Human Intersex” (1943), that “human gender [is] a continuum and intersexuality a normal phenomenon.” See also, the etymology of intersex, “from 1866” as “existing between the sexes, pertaining to both sexes;” from 1916 as “having both male and female characteristics,” https://www.etymonline.com/word/intersex#etymonline_v_35056.

[17] Transgender “refers to the broad spectrum of individuals who transistently or persistently identify with a gender different from their natal gender;” DSM-5 p. 451. 

[18] Natal gender refers to a person’s initial assignment as male or female [or male and female], usually occurring at birth. DSM-5 p. 451.

[19] See generally, “The Intersex Society of North America,” explaining the various forms of intersexed presentations. https://isna.org/faq/what_is_intersex/.

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