This fall, the Supreme Court will be looking at a trio of cases concerning the protection Federal employment discrimination law provides to lesbian, gay, bisexual, and transgender persons. An amicus curiae brief signed by 80 philosophers, in support of the employees in the cases, has just been filed.
The amicus brief was co-authored by philosopher Robin Dembroff (Yale) and law professor Issa Kohler-Hausmann (Yale), and concerns the Supreme Court’s review of Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda (both cases concern whether federal laws banning employment discrimination protect gay and lesbian employees), and R.G. & G.R. Harris Funeral Homes v. EEOC (on whether Title VII’s protections apply to transgender employees). Some background on these cases can be found here.
The following is the “summary of argument” section of the 50 page document:
1. The concept of “sex” is inextricably tied to the categories of same-sex attraction and gender nonconformity. Both categories are partially defined by sex and cannot logically be applied to any individual without reference to that individual’s sex. It is simply not possible to identify an individual as being attracted to the same sex without knowing or presuming that person’s sex. Likewise, it is not possible to identify someone as gender nonconforming (including being transgender) without reference to that person’s known or presumed sex and the associated social meanings. It follows that discrimination on the basis of same-sex attraction or gender nonconformity is inherently discrimination “because of sex.”
2. It is conceptually incorrect to state that discrimination against persons who are same-sex attracted or gender nonconforming is “sex-neutral.” If an employer decides to terminate an employee on the basis of same-sex sexual attraction (i.e., a particular sexual orientation) or gender nonconformity (e.g., being transgender), the employer must first presume the employee’s specific sex, and then account for the social meanings, expectations, and stereotypes specific to the employee’s particular presumed sex category. But for the concept of sex, the judgment that an employee violated one of the expectations and stereotypes specific to their sex would be impossible.
3. Title VII prohibits discrimination not simply based on the categories “man” and “woman,” but because of sex. The philosophical underpinnings of antidiscrimination laws represent a societal commitment to alter socially restrictive categories such that they no longer serve as the basis for denying equal treatment or limiting freedoms based on sex. To permit discrimination against individuals who fall into categories that are partially defined by sex would violate the fundamental rationale behind antidiscrimination laws. Moreover, it would require this Court to define “sex” in a way that is illogically constrained and harmful to groups that have historically been the targets of discrimination.
You can read the entire brief here. The oral arguments for the case will be heard on October 8th, 2019.