Section 5 of the Fourteenth Amendment (1) empowers Congress to enact legislation that "deters or remedies constitutional violations." (2) Recently, Congress has begun to consider exercising its section 5 power to pass a piece of antidiscrimination legislation. If enacted into law, the Employment Nondiscrimination Act of 2009 (3) (ENDA) would prohibit the states, as well as other employers, from discriminating against their employees on the basis of sexual orientation and gender identity. (4) If the Supreme Court, in turn, takes a case that requires it to determine whether sexual orientation or gender identity is a suspect classification, it should consider ENDA, if enacted into law, as one factor that weighs in favor of an affirmative answer.
Although no federal statute expressly proscribes employment discrimination on the basis of sexual orientation or gender identity, over the last several decades lesbian, gay, bisexual, and transgender (LGBT) employees have litigated claims of employment discrimination in the federal courts. (5) These claims have been premised on the idea that, in light of several antidiscrimination principles, sexual orientation and gender identity discrimination are both forms of sex discrimination and thus prohibited under Title VII of the Civil Rights Act of 1964. (6) First, in the analogous context of race-based employment discrimination, courts have concluded that race discrimination occurs when an employer takes an adverse action against an employee because it objects to the race of a person with whom the employee associates, intimately or otherwise. (7) Given that the race and sex discrimination provisions of Title VII are to be construed in the same fashion, (8) the proscription of associational discrimination can fairly be said to apply in the latter context--that is, an employer should not be allowed to discriminate against an employee simply because it believes that the employee seeks intimate relationships with individuals of the "wrong" sex. (9) Sexual orientation discrimination can thus be viewed as sex-based associational discrimination and prohibited under Title VII.
Second, transgender discrimination can also be said to be a form of sex discrimination. As one court has explained, it is indisputable that, in the analogous context of religious discrimination, an employer who terminates an employee because she has converted or intends to convert from one religion to another has run afoul of Title VII's prohibition on religious discrimination. (10) In light of this bar against transitional discrimination, (11) the sex discrimination provision of Title VII can also fairly be said to prohibit an employer from taking an adverse employment action against an employee simply because it objects to the fact that the employee has transitioned or intends to transition from one gender to another. (12)
Finally, the Supreme Court held in Price Waterhouse v. Hopkins (13) that the sex discrimination provision of Title VII prohibits employers from discriminating against employees who do not conform to gender stereotypes. (14) LGB individuals, by definition, do not conform to the stereotype that biological males are sexually attracted only to biological females and vice versa.15 And transgender individuals, by definition, do not conform to the stereotype that biological males perceive or present themselves as male or that biological females perceive or present themselves as female. (16) When employers discriminate against LGBT individuals because of their sexual orientation or gender identity, the employers can be said to be discriminating against LGBT individuals because of their nonconformity with these gender stereotypes.
Although the sex discrimination provision of Title VII can thus be interpreted to prohibit sexual orientation and transgender discrimination, the lower federal courts have largely been reluctant to do so. Rather than applying the principles of associational and transitional discrimination to the sex discrimination provision of Title VII, courts have pointed to the absence of relevant and affirmative congressional intent and concluded that Title VII does not prohibit discrimination on the basis of either sexual orientation (17) or gender identity. …