Constitution Daily

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Constitution Check: Where does the gay rights movement go next?

December 22, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at developments in bringing same-sex couples equal rights in the workplace and in education.


samesex0531twoiconsTHE STATEMENT AT ISSUE:


“[The two students in this case] have stated a claim that they were discriminated against because of their sex.  Discrimination on the basis of sex can be defined as treating someone differently simply because that person’s sex is different from a similarly situated person of the opposite sex….Here, the students alleged that they were told that ‘lesbianism’ would not be tolerated on the [college basketball] team.  If they had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment.  They have stated a straightforward claim of sex discrimination claim under Title IX.


 – Excerpt from a decision by U.S. District Judge Dean D. Pregerson of Los Angeles on December 15, clearing the way for two former players on the Pepperdine University women’s basketball team to sue the university over the different treatment they claim they received because of their sexual orientation.




As the year 2015 draws to a close, it will be remembered by many as the year that same-sex couples won a constitutional right to marry after a campaign that lasted more than four decades.  Like many campaigns for equality of rights in U.S. history, winning a major victory in the Supreme Court would be only a start of the effort to solidify what has been won so that it has real practical meaning in everyday life.


Often, the follow-up to such a campaign can be frustratingly slow, especially when those who had resisted the movement are able to stall the legislative process.   Recall that it took almost a decade for civil rights laws to gain approval in Congress to make racial equality a reality.  Of course, that doesn’t mean the end of the resistance, but it does tend to lessen the opposition.


Given how controversial gay rights remain in this country, there seems almost no near-term prospect that Congress and most state legislatures will pass anything like significant implementing legislation to enhance equality for gays, lesbians, bisexual and transgender individuals.  Congress has been not only skeptical, but downright hostile to new equality measures.


But that, it now appears, is not the way this story is turning out.  It is beginning to appear that civil rights legislation already on the books may well be adapted, by the simple exercise of legal logic, to enhance gay equality, and to do so almost immediately.


There are two basic federal laws that guarantee sexual equality – one for the workplace, Title VII, and one for education that is supported with federal funds, Title IX.  Both, dating from the 1960s, make no mention whatsoever of sexual orientation as deserving of protection under federal law.  They outlaw discrimination based on sex – period.


The Obama Administration has taken the lead in adopting Executive Branch measures to assure the benefits of marriage to gay and lesbian couples, and to promote equality for the everyday rights of LGBT individuals in other contexts.


That is being matched by other actors, examining what sex discrimination means in the present-day lives of those within the gay community.  If those individuals are treated differently because of their orientation toward persons of the same sex, the reasoning goes, that is focusing on their sex, and it is no different from treating women differently from men – in the workplace and in educational circles.


The U.S. Equal Employment Opportunity Commission first adopted this logical extension last July, in a case involving Title VII – the source of workplace equality based on sex and other personal characteristics.  It ruled that claims of discrimination based on sexual orientation merge with sex-based discrimination in the law, and are equally illegal.


“Discrimination,” the commission majority concluded, “on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”


That decision cleared the way for a gay man to sue the federal Department of Transportation for allegedly discriminating on the job based on his sexual preference.  It will guide EEOC policy in reviewing claims of bias by gays and lesbians in hiring, firing, promotions and workplace conditions, including harassment aimed at LGBT employees.


The same logical connection has now been made for Title IX, the law that has played a major role in encouraging the development of female athletes and females pursuing many other career options formerly closed, or almost closed, to them.


A federal judge in Los Angeles has set the stage for two former basketball players on the women’s team at Pepperdine University.  According to claims by the two women in their lawsuit, the coaches and sports staff learned about their lesbian relationship, and proceeded – during most of the spring semester in 2014 – to question them closely about their private sexual lives and their relationship, and took a series of specific steps to try to get them to quit as players.   The coaches told them, they said, that teams lose when they have lesbian players, and that their sexual orientation would cause turmoil in the Pepperdine program.   Ultimately, both did leave the university, and sued under Title IX.  That is the lawsuit that Judge Dean Pregerson has now cleared for trial, rejecting the university’s claim that sexual orientation is simply not protected by Title IX.


Judge Pregerson, in his ruling, borrowed from the rationale the EEOC had used in the Title VII case last summer.  He also relied on an opinion written by a federal judge on the Ninth Circuit Court of Appeals, arguing that discrimination against same-sex marriage should be outlawed as a form of sex discrimination under the Fourteenth Amendment.


In the Pepperdine case, the judge ruled that the two women could proceed with separate claims – one of sex bias based on their sexual orientation, and one of illegally treating them differently on the basis of gender stereotypes.


It will take some time, of course, to see whether these beginnings hold up in court when, inevitably, they will be challenged.  It is easy to imagine that these are issues that ultimately will be resolved by the Supreme Court.


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