When the Text of a Law is at Odds with its Original Intent: Title VII and LGBTQ+ Rights

Alden Kelly

On October 8, 2019, the Supreme Court heard oral arguments for three of the most important employment discrimination cases in modern court history: R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, Altitude Express, Inc. v. Zarda,and Bostock v. Clayton County. At issue isTitle VII of the Civil Rights Act of 1965 and how its existing ban on sex discrimination in employment applies to cases of discrimination of LGBTQ+ workers. The cases ask the justices to examine the interpretation of “sex” under Title VII and whether the language applies more broadly, past the original intent of the Civil Rights Act, to encompass protections toward LGBTQ+ workers. 

R.G. & G.R. Harris Funeral Homes v. EEOCis being brought forth by Alliance Defending Freedom, a conservative, Christian non-profit organization that is asking the Court to reverse the Sixth Circuit Court of Appeal’s interpretation of “sex” discrimination applying to LGBTQ+ workers. Aimee Stephens, represented by EEOC, lived and expressed as a man throughout most of her employment at R.G. & G.R. Funeral Homes before she informed the owner of her plans to transition to female—resulting in her consequential termination. The EEOC filed a lawsuit against the funeral home after completing an investigation, which concluded that the funeral home violated Title VII of the Civil Rights Act of 1964 based on sex discrimination.R.G. & G.R. Harris Funeral Homes v. EEOC asks whether an individual’s transgender status is protected under the language of Title VII.   

Altitude Express Inc. v. Zardaand Bostock v. Clayton County are consolidated to present the cases of two homosexual men alleging employment discrimination based on sexual orientation. Donald Zarda, a skydiving instructor, occasionally disclosed his sexual orientation to female clients to make them feel more comfortable being strapped to another man while skydiving. In one instance, a client claimed Zarda inappropriately touched her and used his sexual orientation to avoid being subjected to her allegations. Zarda denied her accusations, claiming his termination was based solely on the disclosure of his sexual orientation. When Gerald Bostock was working as a highly successful child welfare services coordinator in Clayton County, Georgia, he was terminated suddenly for “conduct unbecoming of a (Clayton County) employee.”[1] Bostock’s termination resulted from an internal investigation into his program funds, which were conducted just after Bostock had begun to receive backlash for his participation in an LGBTQ+ softball league. The cases are consolidated for oral argument to ask the court if the language of Title VII extends protections for sexual orientation. 

Do the words because of such individual’s sexreasonably infer protections against employment discrimination based on sexual orientation or gender identity? Various constitutional interpretations lead to different conclusions. These three cases will test the conservative majority on the bench, pitting the commitments of originalism and textualism against one another. Reversing its precedent, the U.S. Court of Appeals for the Second Circuit held in Zarda that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”[2] Chief Judge Robert Katzmann employed the “comparative test,” asking whether Donald Zarda’s treatment by Altitude Express would have been different on the basis of his sex. If a gay man were a woman, his attraction to a man would not be questioned. Therefore, Katzmann argued, the concept of sexual orientation and gender identity are rooted in one’s sex. Katzmann continued, Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because [...] sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.[3] Reading through a textualist lens, the comparative test shows how the differing treatment of LGBTQ+ employees from straight employees would be discriminatory on the basis of sex, as the action of the employer is contingent on sex.

However, through the originalist lens, the question of “because of … sex” becomes a matter of the intent behind the language chosen in 1964. As issues of sexual orientation and gender identity were not at the forefront of the intention of the language of the bill at the time the Civil Rights Act was passed, then interpreting the law to have such protections goes beyond the powers delegated to the court and into the legislative realm. While federal law is fairly silent on sexual orientation and gender identity, Congress has attempted to pass legislation providing protections to LGBTQ+ employees, such as the Employment Nondiscrimination Act (ENDA) and the Equality Act. These laws have never garnered enough support to become federal law, even when Democrats have held majorities in either chamber. Nevertheless, the lack of protection on the federal level has not prevented states and municipalities from enacting their own nondiscrimination statutes. The question of whether or not to protect LGBTQ+ workers under law has been democratically decided across the country for the last fifty years—a point brought up by Solicitor General Noel Francisco while arguing on behalf of the United States in R.G. & G.R. Harris Funeral Homes v. EEOC. 

With wide-reaching political implications attached, these cases will be a major test of how the new conservative majority handles LGBTQ+ rights cases, especially with the fresh absence of Justice Anthony Kennedy. Is the text of Title VII at odds with its original intent? The answers from today’s bench should provide interesting results. Will justices step aside from their traditional political bounds if their textualist interpretations lead to liberal results?




[1]Bostock v. Clayton County, No. 17-1618 S. Ct. Georgia. Docket no. 17-1618, 22 Apr. 2019.

[2]United States, Second Circuit Court (2d Cir.). Zarda v. Altitude Express. Docket

no. 15-3775, 26 Feb. 2018.

[3]United States, Second Circuit Court (2d Cir.). Zarda v. Altitude Express. Docket

no. 15-3775, 26 Feb. 2018.

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