“The rights of those who claim protections for sexual orientation and gender identity must be weighed against First Amendment protections of religious freedom.”
— Brief filed with the Supreme Court by U.S. Rep. Andy Harris and 47 other congressional Republicans
WASHINGTON, D.C. — With oral arguments set to be heard next month before the Supreme Court, Congressman Andy Harris and 47 other lawmakers have signed onto a brief arguing against the inclusion of sexual orientation and gender identity under the Civil Rights Act of 1964.
The question in three cases under review is whether Title VII of the Civil Rights Act can be interpreted to include sexual orientation within the protections falling under the provision “because of ... sex.”
An amicus brief is a filing by someone or a group of people with a strong interest in a matter before the courts but part of the litigation. In this case, Harris, R-Md.-1st, is joined by eight Republican U.S. senators and 39 Republican members of the U.S. House of Representatives.
“The extension of Title VII to protect sexual orientation and gender identity raises a complex set of concerns and potentially far-reaching consequences. These issues merit thoughtful consideration and the deliberative participation of the people. Accordingly, modification of the statute should be referred to the legislature,” states the brief Harris joined.
Harris’ office did not respond to a request for comment.
The lawmakers’ brief states that the facts of the cases being appealed — two involving gay men being fired allegedly over their sexual orientation, the third being the result of a trans-woman who was reportedly terminated after announcing plans to transition — show the need for careful considerations. The lawmakers argue those considerations are delegated to Congress as representatives of the people under the Constitution.
“Some of the potential effects include collateral impacts on businesses and imposition on matters of conscience. The rights of those who claim protections for sexual orientation and gender identity must be weighed against First Amendment protections of religious freedom,” the lawmakers’ brief states.
Oral arguments in the cases, which have been consolidated from three to two, are to be heard Oct. 8.
St. Michaels resident Lynn Brennan is treasurer of PFLAG Mid-Shore and the vice chairman of GLSEN Maryland, two organizations advocating for the LGBTQ community.
In an interview Tuesday, Brennan said Harris is out of step with Maryland, where a majority of voters approved a referendum question supporting marriage equality in 2012. The state also has its own anti-discrimination law on the books covering sexual orientation and gender identity.
“He doesn’t seem to be reflecting the values of the people in Maryland,” Brennan said of Harris. “I see a large commitment and support for the LGBTQ community on the Eastern Shore.”
Brennan said she knows people who vote fiscally conservative, but are supportive when it comes to social matters and cases such as the ones about to go before the Supreme Court. She thinks a lot of that support stems from more and more people being connected to members of the LGBTQ community.
“These cases are going to affect someone you know and love in your life,” Brennan said.
The brief Harris joined was filed Aug. 23. Attorney Kenneth Starr of Houston, Texas and Timothy J. Newton of Columbia, S.C. are listed as counsel. Starr’s name may be memorable for his role as the independent counsel investigating President Bill Clinton’s sex scandal and the resulting Starr Report.
The U.S. Department of Justice also submitted an amicus brief on behalf of President Donald Trump’s administration in opposition to expanding Title VII protections. As the enforcer of Title VII and an employer, the federal government “has a substantial interest in the statute’s proper interpretation,” the Justice Department filing states.
The lawmakers and the Trump administration argue that historically, Title VII has not been interpreted to include sexual orientation under its protections. The brief for the lawmakers states there is no congressional record to show legislators intended for sexual orientation or gender identity to be part of Title VII protections.
“Laws, no matter how beneficent the animating purposes may be, are to be interpreted in accordance with their terms. It is the text that counts, and where the text is plain the Court need not resort to canons of interpretation,” the lawmakers’ brief states. “In any event, their invitation to perform a judicial form of corrective surgery masks an enormously complex set of issues that merit thoughtful consideration.”
Any modification to Title VII should be done through the legislative process, just as sexual orientation was made a protected class under federal hate crime statutes, the lawmakers’ brief states. They also argue that the court should maintain the concept of stare decisis — adhering to previously set precedent.
“The proposed eleventh-hour shift in interpretation would amount to nothing more than a judicial revision — an attempted rewrite of the law, not to mention an attempt to circumvent the Constitution — that until recent years was neither advanced nor embraced in the cauldron of litigation,” the lawmakers’ brief states. “This is stare decisis on steroids.”
The lawmaker’s brief and the submittal from the Trump administration state that Congress has attempted many times to amend Title VII over the past four decades, but has failed to do so.
“It would be incongruous to hold that 50 attempts to pass legislation to include these things failed if all that was at stake was a mere ‘belt and suspenders’ effort to clarify existing law,” the congressional brief states.
The brief that Harris signed onto also questions the root of sexual orientation and gender identity.
“What the statute actually prohibits is discrimination ‘because of [an] individual’s race, color, religion, sex, or national origin.’ The enumerated terms are nouns, not verbs. They refer to an individual’s characteristics, not a person’s activities or inclinations,” the lawmakers’ brief states. “Title VII’s sex discrimination provision prohibits discrimination because of an individual’s sex; it does not prohibit discrimination because of an individual’s actions, behaviors, or inclinations.”
According to Harris and the other undersigned lawmakers, feminists have argued that the inclusion of sexual orientation and gender identity would adversely affect “the protected rights of women,” transgender individuals are starting to dominate women’s sports and there are medical professionals who say that “broadening the traditional understanding of sex to include sexual orientation and gender identity harms children.”
Harris is himself also a physician as is at least one other undersigned House member. There also are two dentists and a veterinarian among the House members who joined the brief.
The brief from the Trump administration invokes the 1989 Supreme Court decision Price Waterhouse v. Hopkins, which included issues of gender stereotyping under sexual discrimination.
“To be clear, Title VII prohibits disparate treatment of men and women regardless of sexual orientation. Gay, lesbian, and bisexual employees, no less than straight employees, may invoke Price Waterhouse if they are subjected to gender-based stereotypes; a gay man who is fired for being too effeminate has just as strong a claim as a straight man who is fired for that reason,” the Justice Department brief states.
“For example, if the employer would not fire masculine gay men, that suggests it is impermissibly relying on effeminacy, not sexual orientation. The same conclusion might be inferred if the employer also fires effeminate straight men. By contrast, if the employer would fire all gay men (masculine and effeminate alike) but retain effeminate straight men, that suggests it is relying on sexual orientation rather than effeminacy,” the brief continues.
The Justice Department brief for the Trump administration states that it is not a question of should Title VII include protections for sexual orientation and gender identity, it whether or not the law already does.
“The statute’s plain text makes clear that it does not,” the Justice Department brief states. “Congress has amended other statutes expressly to cover sexual-orientation discrimination, and it remains free to do the same with Title VII. But until it does, this Court should enforce the statute as it is written.”