On the Basis of Sex

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone “on the basis of race, color, religion, national origin, or sex.”

But what is discrimination on the basis of sex?

Federal agencies and courts are split on the issue. The Equal Employment Opportunity Commission (EEOC) “interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.” But the Justice Department argues otherwise. The U.S. Court of Appeals for the Seventh Circuit in Chicago and the Second Circuit in New York have ruled that Title VII protects Americans from workplace discrimination on the basis of sexual orientation and gender identity. But the U.S. Court of Appeals for the Eleventh Circuit in Atlanta has ruled to the contrary.

The U.S. Supreme Court agreed last month agreed to settle the matter. The Free Society Laurence M. Vance Buy New $19.95 (as of 06:45 EDT - Details)

The Court has decided to hear three cases relating to workplace discrimination against LGBT employees: Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens.

The cases involve “a New York-based skydiving instructor who said he was fired because he was gay, a Georgia county government employee who said he was fired because he was gay, and a Michigan funeral home employee who said her employer fired her after she told him she was transitioning.”

“No one should be denied a job or fired simply because of who they are or who they love, including LGBTQ people,” says Sarah Warbelow, Legal Director for the Human Rights Campaign, “the nation’s largest lesbian, gay, bisexual, transgender and queer (LGBTQ) civil rights organization.”

Perhaps, but should the law prevent and punish employers from doing so?

Warbelow maintains that “the growing legal consensus is that our nation’s civil rights laws do protect LGBTQ people against discrimination under sex nondiscrimination laws.”

Perhaps, but again, should the law prevent and punish employers from doing so?

According to a report by the Williams Institute, a think tank at the UCLA School of Law “dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy”:

At the federal level and in most states, nondiscrimination statutes do not expressly enumerate sexual orientation and gender identity as protected characteristics. Twenty-two states and Washington, D.C. expressly enumerate either or both of these characteristics in their nondiscrimination statutes, although not necessarily in all settings.

An estimated 8.1 million LGBT workers age 16 and older live in the United States. About half of these workers—4.1 million people—live in states without statutory protections against sexual orientation and gender identity discrimination in employment.

At issue before the Supreme Court is whether federal nondiscrimination statutes should include sexual orientation and gender identity when they prohibit discrimination on the basis of sex. If so, then LGBT individuals will receive federal protection in those states that do not expressly enumerate sexual orientation and gender identity as protected characteristics.

So, as it relates to individual liberty, property rights, and a free society, how should the Supreme Court rule?

Conservatives, and especially religious conservatives, are opposed to the expansion of LGBT rights. But they are terribly inconsistent when it comes to these things. They are opposed to sex discrimination including sexual orientation and gender identity. Yet, at the same time they generally support laws against discrimination based on sex (narrowly defined) and other things such as race, religion, national origin, color, or age.

But in a free society, employers can discriminate on the basis of sex, broadly or narrowly defined. This is because in a free society, employers can discriminate on any basis and for any reason: race, religion, natural origin, physical appearance (skin color, dress, hair color, tattoos, facial hair, hairstyle, head covering, height, weight, etc.), marital status, pregnancy, ideology, disability, political affiliation, age, creed, religious piety, familial status, ancestry, criminal record, health, IQ, or socio-economic status.

Gun Control and the Se... Laurence M. Vance Buy New $5.95 (as of 08:05 EDT - Details) True, such discrimination may be based on based on stereotypes, prejudice, racism, sexism, or bigotry. And yes, such discrimination may be unfair, illogical, irrational, nonsensical, or unreasonable. But since discrimination is not aggression, force, coercion, or threat, it shouldn’t matter, insofar as the law is concerned, on what basis the discrimination takes place or the reason why the discrimination occurs. Discrimination is a crime in search of a victim.

By their very nature, the natural rights of freedom of assembly, freedom of association, free enterprise, and freedom of contract include the right to discriminate. Title VII of the Civil Rights Act of 1964 and subsequent federal anti-discrimination and public accommodations laws are an illegitimate function of government and an unconstitutional expansion of federal power.

The Supreme Court may make the right decision in the three aforementioned cases and not redefine sex to include sexual orientation and gender identity, but it won’t be because the justices think the EEOC should be abolished and all anti-discrimination laws should be repealed.