Statement on Supreme Court Title VII Transgender Claims

The Women’s Liberation Front (WoLF) is cautiously optimistic about the U.S. Supreme Court’s decision to review questions about how federal employment discrimination laws apply to specific types of sex discrimination claims.

In one set of cases the Court will decide whether discrimination “because of . . . sex” under Title VII of the Civil Rights Act of 1964 covers claims of discrimination on the basis of sexual orientation. (Bostock v. Clayton County, Georgia, consolidated with Altitude Express Inc. v. Zarda). In another case, the Court will decide whether “because of . . . sex” under Title VII covers claims of discrimination by individuals who identify as transgender, either on the basis of their claimed status as “transgender,” or on the basis of sex stereotyping. (R.G. & G.R. Harris Funeral Homes v. EEOC).

In numerous court filings, WoLF has voiced strong support for interpreting federal civil rights laws broadly to prohibit discrimination against women and girls on the basis of our sex. As numerous courts have recognized, prohibited sex discrimination necessarily covers claims of discrimination on the basis of sex stereotyping. Sex stereotypes form the foundation for most forms of discrimination against women and girls, including particular forms of discrimination against lesbian and bisexual women, because of socially-imposed stereotypes about how women should act and dress, how we should use and exercise control over our reproductive systems, and how we should form loving relationships. WoLF is optimistic that the Supreme Court will affirm these fundamental principles in the cases it has chosen to review.

At the same time, WoLF is unwavering in its opposition to “gender identity,” a concept that relies entirely on the existence of sex stereotypes. WoLF therefore supports an interpretation of Title VII that prohibits discrimination on the basis of sex stereotypes, including for claims brought by individuals who identify as “transgender” and have been subjected to discrimination on the basis of sex stereotypes. But claims that rely on the concept of “gender identity” or “transgender status” sit in stark contrast with the Supreme Court’s long-standing legal recognition of sex as an innate, immutable characteristic protected from unlawful discrimination under U.S. civil rights laws. A ruling that recognizes claims of “gender identity” or “transgender status” would be incompatible with the plain text and intent of both Title VII and Title IX of the Civil Rights Act; it would do nothing to end unlawful sex stereotyping, but would instead legitimize and perpetuate sex stereotypes.

“If a man wants the right to dress in the same work-appropriate clothes as his female peers, it would be better for him to ask for that forthrightly, rather than requesting a special exemption, different from all the other men. But this only makes sense as a claim to sex discrimination if the plaintiff is recognized as a man,” said Natasha Chart, WoLF board chair. “Women are not customarily prevented by their employers from wearing women’s clothing.”

Finally, WoLF remains hopeful that the Supreme Court will also accept the case of Joel Doe, et al. v. Boyertown Area School District, in which WoLF has submitted a friend-of-the-court brief in support of students challenging the school district’s “gender identity” policy. We maintain that the school is violating Title IX by applying it in a manner that allows people in the school to access women’s-only private spaces like bathrooms, showers, and overnight shared sleeping arrangements on the basis of vague and subjective claims about “gender identity.” Women and girls in educational settings deserve privacy and respect for our bodily integrity. Those rights can only be meaningful if women and girls retain the liberty to choose when we are required to be fully or partially unclothed or exposed to unclothed men and boys, regardless of their stereotypical gender identities.

It is the proper role of federal civil rights laws and the courts interpreting them to protect women and girls – and indeed all people – from pernicious sex stereotyping. It is not the proper role of the Congress or the courts to validate or impose sex stereotypes under the mantle of “gender identity.”

As always, WoLF remains unwaveringly committed to protecting the rights, privacy, and safety of women and girls.