Richard Epstein on Title VII

Title VII did not and does not extend to sexual orientation or gender identity — in 1964 or today

Political and legal discourse has changed much since 1964, when sex was added, almost as an afterthought, to the list of forbidden grounds of discrimination under Title VII of the Civil Rights Act of 1964. What seemed risqué in 1964 seems positively old guard in 2019. So one looming battle of the current Supreme Court term is whether Title VII covers the sexual-orientation claims raised in Bostock v. Clayton County, Georgia  and the gender-identity claims raised in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. The short answer is: It doesn’t.

These two cases offer a stunning contrast in styles of judicial thought. Bostock affirms in a few short sentences a 1979 precedent that “discharge for homosexuality is not prohibited by Title VII.” The use of the term “homosexuality” dates the opinion. Harris, on the other hand, takes 35 dense pages to establish, first, that gender identity is a protected category under Title VII, and second, that the defendant’s religious practices and beliefs provide no constitutional refuge from Title VII under the free exercise clause.

Note the differences. Bostock takes stare decisis seriously. It is not willing to read any change in social mores into Title VII. Its implicit subtext is that only Congress, not the courts, should make fundamental changes in a venerable 55-year old statute. Harris takes the opposite judicial stance. Now, the longstanding Title VII rule is a liability, not an asset. The opinion’s constant use of such voguish terms as “stereotypical behavior” shows its real impatience with obsolete legal norms. Harris eagerly updates older statutes to reflect modern sensibilities.

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LGBTQ rights