Typically when elected people want to tell you bad news but don’t want to have to deal with it publicly, they will say the bad news on a Friday when the news media won’t spend much time on it since the weekend is the next day. The politician then hopes the whole thing blows over by Monday. Ohio Attorney General David Yost waited until Friday to announce that Ohio will sign-on to a brief for three US Supreme Court cases that will decide if the 1964 Civil Rights Act protects LGBTQA people. The brief and Yost don’t support protection of course.
Attorney General Yost said Friday he has joined a friend-of-the-court brief filed by other states arguing the 1964 Civil Rights Act prohibiting discrimination based on sex doesn’t apply to those who identify as lesbian, gay, bisexual or transgender.
Said Yost in a statement:
“This case is about whether the judiciary gets to write new laws or if that should be left to elected legislators. The plain language of Title VII prohibits employers from discriminating because of sex, not sexual orientation or gender identity. If the law is to be amended, Congress, not the courts, should be the one doing it.”
The brief goes to great length in claiming that “sex”, “gender identity” and “sexual orientation” are separate and the law passed in 1964 only used the word “sex” to mean it’s biological meaning so Title VII shouldn’t include protection for LGBTQA people.
Of course that is true. The terms “gender identity”, “transgender”, and “sexual orientation” weren’t known or widely used at the time Title VII was passed and as the brief notes the act itself doesn’t define “sex”.
Here is a passage of the brief Yost signed onto:
“But discrimination based on sexual orientation or gender identity does not involve a sex-specific stereotype—i.e.,one that applies specifically to males or females. So Price Waterhouse provides no support for reading Title VII to prohibit those forms of discrimination. Nor is discrimination based on sexual orientation analogous to anti-miscegenation laws. The latter are prohibited because they are inherently racist. Discrimination based on sexual orientation, by contrast, is not inherently sexist.”
Gender identity isn’t defined by sexual orientation just as sexual orientation isn’t defined by gender identity. The two terms are talking about two separate things that aren’t all inclusive or exclusive. Some people are non-binary or their gender may change over time. The Yost brief conflating gender identity and sexual orientation is a typical religious and conservative move because they falsely assume if you were born with a penis and you want to be a woman you must be gay.
They also hold a narrow idea that sex-specific stereotyping couldn’t possibly apply to someone who was born a man and expresses their gender as a woman (for example). One of the Supreme court cases being considered is because a transgender woman was fired for DRESSING like a woman – that is what stereotyping is – the belief women must dress as women and men must dress as men even though that view is entirely arbitrary and only based on religious and cultural ideas rather than based on any actual science.
Scottish men wear kilts and it is not unheard of for a woman to wear a suit for work but the fabric of our democracy will collapse if a transgender man or woman are protected from discrimination for expressing their preferred gender?? How is that NOT inherently sexist? Forcing a transgender man or woman to express the gender matching their genitalia is inherently sexist – using the plain meaning of the word and excludes people who don’t fit neatly into a gender binary.
That’s the problem I have with conservatives like David Yost. They want to stick with the plain meaning of the word at the time the law was passed and deny the rights of people simply because their label didn’t exist in Congress in 1964.
Congress is the same place a Senator tried to claim that the Internet was a series of tubes in 2006.
Congress isn’t known for being up on the latest lingo.
It’s true that the current laws, rules, and cultural ideas about gender are based on outdated religious beliefs and biases. Gender is an arbitrary label and lots of stereotyping goes on about gender.
The courts have added sexual orientation in Title VII when concerning same-sex harassment. A friend-of-the-court brief from GLBTQ Legal Advocates & Defenders, National Center For Lesbian Rights, Et Al. (which included Equality Ohio) stated:
“Creating an exclusion where none exists in the statute is not a proper way to interpret Title VII—and it is one this Court has already repudiated in bringing consistency to Title VII’s application. Before Oncale v. Sundowner Offshore Services, Inc., lower courts had taken a “bewildering variety of stances” with respect to whether hostile work environment claims could be based on same-sex harassment. 523 U.S. 75, 79 (1998). The Court saw “no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII,” and so had no difficulty concluding that “sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.” Id. at 79, 82.”
So if same-sex sexual harassment is covered under Title VII then discrimination against LGBTQA people can be prohibited using the same logic.
Yost says he believes that Congress should act and not the courts but what do you do when the Congress refuses to act? Yost’s brief mentioned all the times laws were proposed to add LGBTQA as a protected class only see those attempts fail. In fact the Yost brief says:
“Congress has declined to expand Title VII to include sexual orientation and gender identity discrimination.”
Inaction, or in this case failure to act, doesn’t mean the particular segment of people deserve to be discriminated against. If a legislature fails to act to protect the civil rights of a segment of the population then the courts must step in and force the issue.
Public laws and policies shouldn’t be based on outdated views formed from religious or political biases about a segment of the population.
Attorney General David Yost is wrong and Ohio is once again on the wrong side of history.