Are Title VII Gender Identity Discrimination Claims Doomed to Fail? - Granite Grok

Are Title VII Gender Identity Discrimination Claims Doomed to Fail?

Gavel Court Judge

The Civil Rights Act of 1964 couldn’t have known that gender would find a spectrum. One which would then run afoul of protections in the Bill of Rights. But it has, and states, including New Hampshire, are including gender in discrimination law but can it survive?

While State Legislatures are free to explore these notions, they are not at liberty to use them to deny Constitutional rights. It is a clash destined to end at the nation’s highest court. Repeatedly.

Richard A. Epstein, writing at Scotus Blog, unpacks that legal debate. It’s a good read if you’re not too put off by legal opinion. But I think we can sum it all up with this critical point.

It cannot be that self-identification matters for sex, but is irrelevant for race or ethnicity. The statute just does not parse if identity claims carry over to race, color, religion or national origin.

He is referring to R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. A lower court opinion that “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.”

This opinion is doomed and should fail. A clear reading of the law does not justify any sacrifice of protected religious liberty in favor of an approach to sexuality outside the context of biology — no matter what social constructs you conceive. And Epstein nails the why.

There is no spectrum for any other qualification under Title VII. None. And even if Congress amends the law to include the concept, the US Constitution stands between them. The state cannot make nor punish private citizens or business owners who base hiring and firing decisions based on religious conviction.

Just ask Muslim bakers.

That’s not to say we will never see activist courts creating interpretations to justify a cultural bias.  We have and will. But at present, there is no evidence that this sort of foolishness will pass muster.

And how can you stereotype a circumstance that is, by the nature of the language used to explain the class, fluid? The gender spectrum, by the admission of its advocates, is not static. It is fleeting and intangible. Which means, at least in theory, it can conform to any identity required like wearing a suit to the office because of an appearance standard.

How does that translate to employment security?

Well, if Hooters is not required to hire men as waitresses, must it hire men who look like men but identify as women? I doubt it. And there is plenty of precedents to support that. This suggests that states, like New Hampshire, can add gender identity to anti-discrimination law (and have) but the right to run a business where perception and appearance are a core part of the business, along with any legitimate religious objection, will ultimately survive judicial scrutiny.

Because you can’t pretend what age or race you are and if you could, Title VII and discrimination law would no longer serve any purpose. If everyone is ‘special,’ or can be based on a whim, then no one is.

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