Bar Talk

You may have heard the phrase, “if you’re queer, you can get married one day and fired from your job the next.”  It’s a catchy talking point, but it’s actually not true.

It is not the case that, in the United States, LGBT people can legally get married one day and fired the next.  Why not?  Not just because many (but not enough!) states and localities have protections to varying degrees against sexual orientation and gender identity discrimination in employment and other contexts.  Even more so, it is because employment protections exist at the federal level.  As to government employees, the Supreme Court has recognized in case after case that the U.S. Constitution provides protections against discrimination on basis of sexual orientation by government actors, and that extends to public employment as well other settings.

Most significantly for those of us with non-government employers, federal law protects LGBT people against employment discrimination even in the private sector.  This is because Title VII, the federal civil rights statute that prohibits certain types of employment discrimination, including discrimination “because of sex.”

Now, the text of Title VII itself does not explicitly address anti-LGBT discrimination, just like it doesn’t explicitly spell out that sexual harassment is illegal.  But as the EEOC  (the federal agency charged with enforcing the anti-discrimination law, which is, thankfully, more independent from Trump than other federal agencies under his tight control) has long recognized, the statute’s sex discrimination protections extend to all people—regardless of sexual orientation or gender identity—and they include protections from gender identity- and sexual orientation-based discrimination.

As to sexual orientation specifically, the EEOC explained in Baldwin v. Department of Transportation that “sexual orientation is inseparable from and inescapably linked to sex and, therefore, allegations of sexual orientation discrimination involve sex-based considerations.”  The Seventh Circuit Court of Appeals in Hively v. Ivy Tech Community College similarly noted, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” And the Second Circuit in Zarda v. Altitude Express Inc.even more recently explained, “sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.  Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”

Lest there be any doubt that anti-LGBT discrimination in the workplace is prohibited by Title VII’s sex discrimination protections, the EEOC website itself clearly explains:  “EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.  These protections apply regardless of any contrary state or local laws.”

Across the country, other federal courts, following the lead of the EEOC, have increasingly spelled out that gender identity- and sexual orientation-based discrimination are inherently forms of sex discrimination prohibited under federal civil rights law. Therefore, LGBT people can seek relief under Title VII when they are subjected to employment discrimination.

The problem is, opponents of LGBT rights are still doing their best to keep LGBT people from being able to turn to the courts for justice when they are discriminated against.  They stubbornly keep arguing across the country that anti-LGBT discrimination is not prohibited by Title VII.

And that’s where the bi bridge comes in, particularly in the context of sexual orientation discrimination cases. By omitting bisexuality from legal discourse, LGBT-rights advocates may be actually shooting themselves in the foot by foreclosing important arguments, when they could instead be availing themselves of the important strategic bridge that bi inclusion could provide.

Here’s how it works.  In Title VII cases, federal courts like the Seventh Circuit in Hively v. Ivy Tech Community College have explained that, to prove that a negative employment decision was in fact sex discrimination, lawyers for LGB employees can make several arguments (which parallel the arguments in gender identity cases as well).

First, a “gender stereotype” argument can be made, referencing decades of cases in which courts have ruled that it is illegal sex discrimination to force employees to conform to certain gender stereotypes.  The court in Hively explained that the lesbian employee who was fired in that case “represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.  Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all.”

Another way to show that LGBT employees are victims of sex discrimination is to use what’s called “the comparative method.” Under that method, to make a claim for sex discrimination, the only variable that can change between a negative employment decision and a positive one is the employee’s sex.  Similarly, sex discrimination can be proven under an “associational” approach, pointing out that the changing variable is the sex of the employee’s partner.

In other words, to show sex discrimination, an LGBT employee can show that she wouldn’t have been fired, demoted, or otherwise discriminated against if she had only been a man, or if she had only been dating a man, as opposed to a woman.

Now, in an effort (so far unsuccessfully, but that may change as Trump packs the federal courts with more and more conservative judges, giving them lifetime appointments to the bench) to defeat such claims by LGBT employees, Trump’s Department of Justice has countered that such claims fail to prove the discrimination would not have happened “but for” sex  because for such claims to succeed, every factor aside from sex has to be held constant.  But, they assume (forgetting about the bi possibility) if someone goes from dating a man to dating a woman, their sexual orientation must have changed too, rather than being constant.  Therefore, “[t]he proper comparison would be to change the employee’s sex (from male to female) but to keep the sexual orientation constant (as gay),” Trump’s DOJ lawyers argued unsuccessfully in a brief to the Second Circuit Court of Appeals in Zarda v. Altitude Express, Inc.

Adding bisexuality to the mix of legal arguments can brilliantly expose the hole in the DOJ’s “it wasn’t ‘but for’ sex” argument.  Bisexuals illustrate how sexual orientation really is sex discrimination, precisely because of the but/for test, and even under the DOJ’s formula described in the previous paragraph.
In the case of the bisexual employee treated differently solely because of her (or her partner’s) sex, then every factor really is constant except for sex.  For example, when a bi employee is discriminated against because she has a female partner, but would not have been discriminated against if she were a man with a female partner, that illustrates how the discrimination truly would not have occurred “but for” sex, sex being the only thing that changed from one scenario to the next. Everything else is constant, including the bi employee’s sexual orientation.  Thus, bi people help illustrate how sexual orientation discrimination really is, properly understood, a form of sex discrimination, and therefore, prohibited as illegal sex discrimination under Title VII.

Including bisexuality in same-sex marriage arguments similarly could have helped make the case that anti-LGBT discrimination in the marriage context is a form of gender discrimination.  BiLaw’s amicus brief in Obergefell v. Hodges made such an argument, and I similarly wrote in Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation and other articles back in the days leading up to the Supreme Court’s ultimate marriage equality rulings:

One of the clearest illustrations of why the denial of marriage equality is a form of sex discrimination is this: if I were to apply for a marriage license in [a] state [that] prohibits same-sex marriage, and if, in the process, I announced to the clerk issuing marriage licenses that I am bisexual and want to marry a man, my state would allow me to do so. If, on the other hand, I were to approach the clerk with the statement that I am bisexual and want to marry a woman, I would be refused a marriage license. The only thing that would have changed is the sex of the person I want to marry, and not my sexual orientation, which was bisexual all along. Thus, the denial of marriage equality for same-sex couples is a form of sex discrimination, based on the sex of those in the partnership, and not, necessarily, on sexual orientation.

See it? If you’re not yet a lawyer, big kudos, and please, consider going to law school. We need you.  If you’re already a lawyer, great.  Incorporate bisexuality into your LGBT-rights briefs, and help make the LGBT-rights movement become more bi-inclusive.  It’s not just the right thing to do; it’s strategically savvy as well.