Friday, July 05, 2019

LGBT discrimination is still sex discrimination

Andrew Koppelman

The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity.  The lower courts are split on whether such protection is granted by the plain language of the statute.  The case will be argued October 8.

July 3 was the deadline for filing amicus briefs, and Yale Law Prof. William Eskridge and I coauthored one, arguing that a textualist approach to interpretation, which has been endorsed by all the conservative justices, entails that LGBT discrimination is sex discrimination.  The Court cannot deny the sex discrimination claim without betraying its commitment to textualism.  The brief is here.

If anything in it persuades you, that part was probably written by Bill Eskridge.

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