What did those who wrote and approved Title VII of the Civil Rights Act more than half a century ago intend by including “sex” in the list of categories protected from employment discrimination? And what do 48 Republican members of Congress intend by challenging its application to cases of alleged workplace discrimination against members of the LGBTQ community?
Our congressman, Jim Banks, and one of our senators, Mike Braun, were among those joining an amicus brief that asks the U.S. Supreme Court to find that the 1964 law does not confer such protection.
Title VII changed the American workplace forever. No longer could most employers use a person's race, color, sex, religion or national origin to decide whom to hire, promote or fire. Millions of men and women have worked under its protection during the more than half a century since. No sane politician would suggest doing away with it.
But the brief Banks and Braun have lent their names to argues those lawmakers in 1964 did not have protecting sexual orientation and gender identity in mind. The reference to sex, it says, is totally about women who are discriminated against because they are not men. It's only in recent years, the brief argues, that some misguided courts and federal agencies have started to read protections for LGBTQ (the acronym stands for lesbian, gay, bisexual, transgender and queer or questioning) people into Title VII.
“The Court has no authority to rewrite the law,” 3rd District Rep. Banks said in a statement last week. “ 'Sex' in Title VII clearly refers to male and female.
“Title VII was landmark, bipartisan legislation. Activist judges shouldn't be able to override the will of the people.”
Historical intent and strict constructionism, of course, can be tricky, unless you're willing to be consistent. Banks, for instance, appears comfortable with the concept that those who wrote the Second Amendment in the 18th century fully intended to guarantee the right of every American to carry high-powered semi-automatic weapons that hadn't yet been invented.
Too, there are legal scholars who believe letting LGBTQ Americans under the anti-discrimination tent isn't a stretch at all. In its brief urging the Supreme Court to affirm their protected status, the American Bar Association argues Title VII's prohibitions explicitly include acts against gays and transgendered people.
“If a person is fired because he is a man who loves a man but would not have been fired if he had been a woman who loves a man,” the ABA's brief argues, “that person has been discriminated against 'because of... sex.' ”
It seems noteworthy that no other members of the state's U.S. House delegation joined Banks and Braun. Perhaps the others were wary of further burnishing Indiana's image as a state hostile to LGBTQ rights, dating from the effort to pass and quickly revise the Religious Freedom Restoration Act in 2015. Braun, then a state senator from Jasper, voted for that shameful attempt to legitimize bias in the guise of protecting others' faith. Banks was then serving a tour in Afghanistan; Amanda Banks, his wife and Senate replacement, voted for it, too.
This time, there is a simple way for Banks, Braun and their congressional colleagues to demonstrate that their objective is not to condone bias, but simply to ensure that the high court interprets the fine print and legislative intent of the Civil Rights Act correctly. They could get behind a new congressional effort to explicitly add sexual identity and orientation to the 1964 law's list of protected categories.
How about it, senator and congressman? The Braun-Banks LGBTQ Civil Rights Bill of 2019. Has a nice ring to it.