Last Thursday, the Equal Employment Opportunities Commission (EEOC) -- the federal agency that enforces our country's main employment anti-discrimination law Title VII -- issued a landmark decision ruling that "allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex." This decision applies to all federal employees, guides all of the EEOC offices in how they handle claims by private employees, and is persuasive to federal courts in their interpretation of Title VII.
Simply put, the EEOC recognized that it is impossible to discriminate against someone for being gay without taking into account that person's sex. And because Title VII clearly states that discrimination based upon a person's sex is illegal, discrimination based upon a person's sexual orientation must also be illegal. (The EEOC has already issued a similar decision in 2012 ruling that Title VII's sex discrimination provisions also prohibit discrimination against transgender employees.)
How does this argument work? Let's say that an employer refuses to provide spousal health insurance to a lesbian employee's wife. This is precisely what happened to GLAD's client and Walmart employee Jackie Cote, whose wife Dee was diagnosed with breast cancer and racked up a minimum of $150,000 in medical bills due to her employer's discrimination. In order to make the decision to deny spousal benefits, Walmart had to take into account Dee's sex as female. In other words, Jackie would have gotten the benefits for her wife if she were a man; because she is a woman, she was denied. Based upon this simple theory, GLAD recently filed a class action lawsuit, the first of its kind in the country, against Walmart on behalf of Jackie and others like her.
For decades, many courts ignored or rejected this argument. Instead, judges wrongly insisted that because Title VII was never intended to protect gay people at the time it passed in 1964 as part of the Civil Rights Act, it cannot be interpreted to do so today. That is despite Justice Scalia's decision in the 1990s, ruling that Title VII could be used to prohibit same-sex sexual harassment, regardless of what Congress's intent was at the time of its passage. Many of these decisions also relied upon bad case law that has since been rejected.
Thankfully, in the last decade, more and more courts, and now the EEOC, have begun to re-unite the legal theories underlying sex, sexual orientation and gender identity discrimination. But ironically, sex has not just become an important avenue to expanding discrimination protections; it is also a major reason for the continued existence of anti-gay discrimination.
This time, I'm talking not about the fact of a person's sex, but rather the act of sex.
One of the fundamental reasons why people are prejudiced against gay people is because they are uncomfortable with the idea of two people of the same sex having sex. Psychological studies have shown for decades that we as a society are deeply uncomfortable, and at times disgusted, by same-sex sexuality, and in particular gay male sexuality. Even something as simple as two men holding hands creates discomfort for 47 percent of Americans, as a recent poll has shown. And clearly, sex is what horrifies our most adamant opponents the most.
Sex is also why society has been so slow to fully affirm and embrace LGBTQ youth. Honest conversations about sex, sexuality and youth are still the third rail in our schools, as evidenced by the abysmal state of sex education generally. Add in same-sex sexuality and gender identity, and the paranoia becomes even greater, with schools refusing even to allow GSAs because of the belief that such clubs promote discussions about sex. The idea of LGBTQ-inclusive sex education, so vital to healthy behavior by youth, is still a pipe dream (although one that we should begin aiming for now).
We still have a long way to go before the LGBT community can be open about our sexualities without risking judgment, shame, discrimination, or violence. But thankfully, this is a situation where the cause can also be the cure. By continuing to talk about sex (both the fact and act of it), we can hasten the day when sex is not only viewed as a positive, integral part of our identities, but also irrelevant to our worth as as equal citizens and members of society.