Amicus brief co-authored by Jessica Clarke asserts that Title VII prohibits employment discrimination based on sexual orientation and transgender identity

Oct 4, 2019

Professor Jessica Clarke Law SchoolJessica Clarke, professor of law and co-director of the Social Justice Program, is the co-author of an amicus brief filed on behalf of a group of anti-discrimination scholars in three cases that will be heard in the Supreme Court on Oct. 8.

The cases, Bostock v. Clayton County Georgia, Altitude Express Inc. v. Zarda, and Harris Funeral Homes v. Stephens, address the question of whether Title VII of the Civil Rights Act of 1964 forbids an employer from firing someone because of their sexual orientation or transgender identity. Clarke co-authored the brief with Brian Soucek of UC Davis Law School, and Mitchell Reich and Thomas Schmidt of law firm Hogan Lovells.

Read Clarke’s Oct. 7, 2019, opinion piece in the Los Angeles Times, “Past cases have labeled LGBTQ people as deviants. Will the Supreme Court move beyond that?

Gerald Bostock worked for more than 10 years as the child welfare services coordinator for Clayton County, Georgia, but was fired after his employer discovered he was gay. Donald Zarda, a gay sky-diving instructor, was fired after a female client alleged he disclosed his sexual orientation. Aimee Stephens was fired after she informed the owner of the funeral home where she had worked for several years that she is a transgender woman. Title VII forbids discrimination “because of sex.” The question in these cases is whether it is discrimination “because of sex” to fire someone for being LGBT.

In their amicus brief, the scholars argue the answer is yes. They propose that the Court apply a “simple analogy” to conclude that discrimination against an individual for sexual orientation or transgender identity is discrimination on the basis of sex:

“Suppose an employer announced a policy that, beginning the following day, all workers would be fired unless they adhere to traditional gender roles. All male employees would now be required to be ‘manly’: They must follow sports, speak assertively, and serve as the family’s primary breadwinner. All female employees, meanwhile, would need to be ‘ladylike’―wearing make-up, cooking and cleaning for their husbands, and speaking softly. Beyond doubt, such a policy would be unlawful.”

The Title VII prohibition on discrimination on the basis of sex, the scholars argue, also “means employers cannot put employees to the choice of adhering to ‘sex stereotypes’ or forgoing full employment opportunities.”

“The forms of discrimination as issue in these cases are simply variants on that clearly forbidden policy,” their brief states. “In substance and effect, discrimination against lesbian, gay, bisexual and transgender persons punishes men and women for failing to adhere to core stereotypes of masculine and feminine behavior.”

Clarke is the author of a 2018 Harvard Law Review article, “They, Them and Theirs,” which examines “what the law would look like if it took nonbinary gender seriously.” She has written about the pending Supreme Court cases in an essay that is forthcoming later this year in the Texas Law Review Online, “How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong.”

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