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  • Before the US Civil Rights Act passed in 1964, it had been written to protect Americans from

  • discrimination on the basis of race, religion, color or national origin. The bill was controversial,

  • not all politicians wanted to see it go through. One of those people was a Representative from

  • Virginia named Howard W. Smith, who proposed an amendment, to insert the word Sex

  • He snuck it into Title VII of the bill, which protects people from discrimination at work.

  • And he did it because he thought that adding sex discrimination protections would make

  • the bill so unpopular that it wouldn t get enough votes to pass. But it didn t work.

  • Congress passes the most sweeping Civil Rights bill ever to be written into the law.

  • Instead the inclusion of the word in the Civil Rights Act set up a different battle.

  • Because the Civil Rights Act says nothing about sexual orientation or gender identity,

  • for the past 50 years, the US has been debating the legal definition of sex and whether it

  • protects LGBTQ Americans from discrimination, too.

  • That answer depends on who you ask and it hangs on the outcome of the 2020 election.

  • What sex discrimination meant in the context of the Civil Rights Act of 1964 was that,

  • women, who were becoming a larger part of the work force, couldn t be discriminated

  • against just because of their sex. At the time it didn t explicitly protect LGTBQ people.

  • But over the years, a wave of activism and a string of legal battles helped interpret

  • the Civil Rights Act to include protections for LGBTQ Americans.

  • And it all came down to the word sex and what it means to discriminate on that basis.

  • It's been a way for us to obtain protections through litigation that we have not been able

  • to obtain explicitly through congressional action.

  • This is Sasha Buchert, she s a senior attorney at Lamda Legal, which litigates sex discrimination

  • cases for the LGBTQ community. The pivotal case would be Pricewaterhouse

  • v. Hopkins. The Supreme Court ruled on it in 1989, and

  • it helped expand the definition of sex discrimination It involved a woman named Ann Hopkins who

  • worked at an accounting firm and who, by all accounts was highly successful.

  • Ann was competing against 87 male applicants for a promotion to partner. And someone from

  • the hiring committee told her how she might get the job:

  • To dress more femininely, get her hair styled, wear jewelry, and there were other folks who

  • were throwing around words that she was know, quote, macho .

  • She was rejected for partnership twice, so Hopkins sued her company, using the sex discrimination

  • clause in the Civil Rights Act. And she won, which expanded the kind of discrimination

  • that Title VII can protect against, based on something called sex stereotyping.

  • The court ruled that "an employer who acts on the basis of a belief that a woman cannot

  • be aggressive, or that she must not be, has acted on the basis of gender."

  • And in 2004, another court ruling expanded this logic even further, to explicitly protect

  • a trans person. The Smith decision involved a firefighter

  • in Salem, Ohio, who came out and had a pretty stellar record. She began her gender transition,

  • meaning that she was born male and was transitioning to live in accordance with her female gender

  • identity. Ms. Smith sued her employer for sex discrimination

  • when she found out she would be fired, And she won, based on the argument that discrimination

  • against someone who doesn t identify with his or her gender is no different from the

  • discrimination directed against Ann Hopkins who, in sex-stereotypical terms, did not act

  • like a woman. So that was a significant victory, especially

  • at the time. I think it's important to remember the courage

  • of someone to take that step in the early 80 s in a firefighting outfit.

  • These cases have helped protect countless members of the LGBTQ community who have had

  • to fight these legal battles in the absence of a federal law that grants them protections.

  • There's no substitute for those explicit protections. You know, I lived in California and I lived

  • in Oregon. And, you know, there's just no ambiguity about the fact that trans people

  • are protected under the law in those states and that's the way it should be federally.

  • Oregon and California are two of the 27 states that have their own non-discrimination laws

  • based on gender identity or sexual orientation. One state only has sexual orientation protection.

  • 22 states don t offer any protections at all. That ambiguity makes the position of the White

  • House on this issue really important. Starting in 2014, the Obama administration

  • signed executive orders to reflect how sex discrimination was being interpreted in the

  • courts. And those rules impacted all these federal agencies.

  • For example, the Department of Justice wrote that the best reading of Title VII s prohibition

  • of sex discrimination is that it encompasses discrimination based on gender identity, including

  • transgender status. The Department of Defense said that transgender

  • individuals shall be allowed to serve in the military."

  • And the Department of Education issued a letter that said schools that receive federal funding

  • should allow students to use the bathroom that aligns with their gender identity.

  • But in 2017, when President Trump took office, his administration reversed all those rules,

  • explicitly saying that discrimination does not encompass gender identity.

  • Meaning "sex" is limited to biological sex determined at birth.

  • And that contradicts how the courts have evolved over the past 50 years.

  • If you're gonna just decide to take steps like that without complying with the rule

  • of law, that's really dangerous for our democracy. Then in 2020 came another Supreme Court case

  • that made the courts interpretation even clearer. A major Civil Rights decision out of the United

  • States Supreme Court. The biggest opinion for gay rights in this

  • country since 2015 when of course same sex marriage was legalized.

  • The case involved a juvenile court employee in Clayton County, Georgia, a state that doesn

  • t offer LGBTQ discrimination protections. It was my dream job doing what I loved and

  • making a difference on the lives of children that came through the system. Then one day,

  • after 10 years of employment, I decided to join a gay recreational softball.

  • Gerald had posted about the softball league at work.

  • And within six months of making that decision, I lost my job. I lost my job because I'm gay.

  • I was devastated. You know, I lost my income. I'd lost my medical insurance. And that was

  • a time when I was still recovering from prostate cancer. So it was a very difficult time.

  • A man who says he was fired from his job because he s gay takes his case to the US Supreme

  • Court tomorrow. As I started seeing it on on television

  • The Supreme Court has ruled that LGBT Americans are protected by the anti discrimination laws.

  • My heart stopped for a moment. I was just elated.

  • A landmark ruling for gay and transgender workers.

  • The LGBTQ+ community celebrated outside the Supreme Court today.

  • It opens a door for all kinds of lawsuits against discrimination.

  • This decision made the courts' logic on LGTBQ protections explicit: sex discrimination includes

  • discrimination for sexual orientation, too. The legal fight for LGBTQ people to be protected

  • from sex discrimination took half a century in the courts.

  • But whether the White House acknowledges that evolution will depend on the outcome of the

  • 2020 election. It does send a message, you know, to the people

  • in the community that they're not protected and invites people to discriminate and just

  • creates a hostile environment for our communities. Joe Biden has given every indication he plans

  • to reverse Trump s rules, on his campaign site, and in town halls.

  • How will you as president reverse this dangerous and discriminatory agenda and ensure that

  • the lives and rights of LGBTQ people are protected under US law?

  • I would flat out just change the law, I would eliminate those executive orders.

  • That change would acknowledge what the courts have decided that the "the definition of discrimination

  • based on sex should include the LGBTQ community" instead of leaving them to continue their

  • fight.

Before the US Civil Rights Act passed in 1964, it had been written to protect Americans from

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Why LGBTQ rights hinge on the definition of "sex" | 2020 Election

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    林宜悉 posted on 2020/10/29
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