The Civil Rights Act of 1964 was enacted to stop discrimination, specifically discrimination based on race. While the law was passed primarily to deal with this area, it also prohibited discrimination based on sex, religion, and national origin. Title VII of the Civil Rights Act specifically governs employment, and stipulates that no employer may “fail or refuse to hire or to discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”[i]
Title VII also established the Equal Employment Opportunity Commission (EEOC), an executive agency tasked with enforcing Title VII, including assisting in lawsuits.
For nearly the entire history of Title VII, the EEOC has interpreted the prohibition against “sex” discrimination to bar discrimination based on the biological sex of an individual. For example, Title VII prohibits a company from refusing to hire women and only employing men. Since 1964, Congress has amended Title VII several times, but has always declined to amend the law to include “sexual orientation” or “gender identity.” In that time, Congress passed other laws that explicitly prohibit discrimination based on sexual orientation and gender identity, but never adjusted the language of Title VII.
Perhaps realizing it could not legislatively accomplish its policy goals, the EEOC under the Obama administration pivoted sharply in 2012, departing from precedent and declaring by agency fiat that it would devote resources to ensuring the Title VII protections based on “sex” would cover “lesbian, gay, bisexual, and transgender individuals.”[ii] Knowing it was unlikely Congress would amend the law, the EEOC circumvented the legislative process by publishing guidelines that instructed courts to construe discrimination against LGBT individuals to be “sex discrimination” under Title VII. The agency sued several businesses and submitted briefs in others, supporting LGBT plaintiffs against their employers. Over the last six years, several courts have followed the EEOC’s unlawful deviation, penalizing private business owners for something the law does not prohibit.
[ii] Lauren Sanders, “EEOC Recognition of Discrimination Based on Transgender Identity,” Duke Journal of Gender Law & Policy 23 (2016): 263-281, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1309&context=djglp.