Jennifer S. Hendricks[*]
The LGBT community may soon win a legal victory that has been decades in the making: passage of the Employment Non-Discrimination Act (ENDA). As passage of the bill becomes more likely, debates about how much to compromise for that victory have become increasingly important. The current version of ENDA represents a series of compromises that should now be reconsidered.
After years of failed attempts to add “sexual orientation” to Title VII of the Civil Rights Act of 1964, ENDA’s proponents decided they would have a better chance with a stand-alone bill stripped of several of Title VII’s protections: they gave up disparate impact claims and affirmative action as a remedy for proven discrimination. Most recently, Representative Barney Frank, the Act’s sponsor, agreed to remove protection for transgendered people in order to win passage in the House.
Less than a year later, a federal court showed Representative Frank the risks of compromise. In September 2008, the D.C. district court held in Schroer v. Billington that transgender people are already protected by Title VII’s ban on sex discrimination. This decision would have been less likely if ENDA had passed last year because the enacted version would have excluded gender identity claims. Moreover, the current version of ENDA has the potential to do real harm not only to transgendered plaintiffs but also to lesbian, gay, and even straight-identified plaintiffs whose claims are based on sex stereotyping.
This Essay proposes a revision of ENDA that would avoid those harms and at least leave the door open to gender identity claims. Instead of enacting ENDA as currently drafted, the next Congress should amend the “because of sex” provision of Title VII to prohibit discrimination “because of gender,” defined to include sexual orientation and gender identity. “Sex” refers to an anatomical classification as male or female, while “gender” refers to socially constructed norms associated with sex. As explained in Part I, the courts have already interpreted Title VII to allow some kinds of claims based on gender rather than sex but have refused to recognize sexual orientation as part of gender. Part II notes Congress’s response when the courts wrongly adopted a narrow interpretation of “sex” that excluded pregnancy: Congress responded effectively through Title VII instead of enacting a separate law about pregnancy. Part III argues that Congress should do the same for sexual orientation and gender identity.