Amicus Curiae Brief — Gerald Lynn Bostock, Petitioner v. Clayton County, Georgia

Supreme Court briefJul 3, 2019

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Nos. 17-1618, 17-1623, and 18-107

In the Supreme Court of the United States

GERALD LYNN BOSTOCK, PETITIONER

CLAYTON COUNTY, GEORGIA, RESPONDENT

ALTITUDE EXPRESS, INC. ET AL., PETITIONERS

MELISSA ZARDA, AS EXECUTOR OF THE ESTATE OF

DONALD ZARDA, ET AL., RESPONDENTS

R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ET AL.,

RESPONDENTS

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE ELEVENTH, SECOND, AND SIXTH CIRCUITS

BRIEF OF HISTORIANS AS AMICI CURIAE

IN SUPPORT OF EMPLOYEES

RAKESH N. KILARU

WILKINSON WALSH +

ESKOVITZ LLP

2001 M St. N.W.,

10th Floor

Washington, DC 20036

CHANAKYA A. SETHI

Counsel of Record

ANGELA CAI

WILKINSON WALSH +

ESKOVITZ LLP

130 West 42nd St.,

Suite 1402

New York, NY 10036

(929) 264-7758

csethi@wilkinsonwalsh.com

TABLE OF CONTENTS

Page

Interest of amici curiae ..................................................................1

Summary of argument ...................................................................2

Argument .........................................................................................4

I. The historical context surrounding Title VII’s

enactment featured a broad range of public meanings

for the word “sex” and growing public awareness of

LGBT individuals .....................................................................5

A. “Sex” encompassed a wide spectrum of public

meanings in the 1960s .......................................................5

B. At the same time, the public was well aware of

LGBT persons in American society ................................8

II. In accord with the public’s capacious understanding of

“sex,” Title VII’s protections against sex

discrimination were understood to prohibit employers

from requiring conformity to sex-role expectations in

the workplace ..........................................................................11

III. At a time when the public commonly associated LGBT

people with gender nonconformity, early

interpretations of Title VII often made room for

LGBT individuals as potential claimants ............................17

A. Public understandings linked being lesbian, gay,

bisexual, and transgender together and associated

them all with gender nonconformity .............................17

B. When Title VII took effect, some claimants and

EEOC officials assumed that the bar on sex

discrimination could cover LGBT employees ..............22

IV. Not until 1975, in the context of growing opposition to

the gay rights movement and to women’s equal rights,

did the EEOC move to exclude potential LGBT

claimants from protection under Title VII .........................29

Page

Table of contents—continued:

A. A newly vocal gay and transgender rights

movement in the early 1970s often linked gay and

transgender rights with equal rights for women ........30

B. Opponents of equal rights for women also closely

linked women’s rights with legal advances for

LGBT people ....................................................................32

C. In the context of rising anti-gay and anti-sex

equality lobbying, the EEOC in 1975 decided that

Title VII’s sex discrimination provision did not

protect LGBT complainants ..........................................35

Conclusion ......................................................................................39

Appendix: List of amici curiae ....................................................1a

TABLE OF AUTHORITIES

Cases:

Diaz v. Pan Am. World Airways, Inc.,

442 F. 2d 385 (5th Cir. 1971) ......................................15, 16

Fulton Bar & Grill, Inc. v. State Liquor Auth.,

205 N.Y.S.2d 378 (App. Div. 1960) ..................................19

Hively v. Ivy Tech Cmty. Coll. of Indiana,

853 F.3d 339 (7th Cir. 2017) (en banc) .......................4, 38

Norton v. Macy,

417 F.2d 1161 (D.C. Cir. 1969) ........................................30

Phillips v. Martin-Marietta Corp.,

400 U.S. 542 (1971) (per curiam) ....................................15

Smith v. Liberty Mut. Ins.,

395 F. Supp. 1098 (N.D. Ga. 1975) ..................................38

Stanton v. Stanton,

421 U.S. 7 (1975) ................................................................15

Voyles v. Ralph K. Davies Medical Ctr.,

403 F. Supp. 456 (N.D. Cal. 1975) ...................................38

iii

Page

Cases—continued:

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975) ............................................................15

Wittmer v. Phillips 66 Co.,

915 F.3d 328 (5th Cir. 2019) ...............................................4

Zarda v. Altitude Express, Inc.,

883 F.3d 100 (2d Cir. 2018) (en banc) ...............................4

Administrative decisions:

Club Tequila, In re, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 1557, item 1 (1964) .............................................20

E.B. v. Twin City Milk Prods. Ass’n,

No. 72-1394 (EEOC Mar. 8, 1972) ..................................28

E.H. v. Nat’l Biscuit Co.,

No. 72-1447 (EEOC Mar. 23, 1972) ................................29

EEOC Dec. No 76-67, 1975 WL 4475

(Nov. 21, 1975) ...................................................................37

EEOC Dec. No. 76-75, 19 Fair Empl. Prac. Cas.

(BNA) 1823, 1975 WL 342769 (Dec. 4, 1975) .................37

EEOC Op. Gen. Couns. M108-66 (Feb. 2, 1966),

Digest of EEOC Legal Interpretations: Part II,

LRX 1892d .........................................................................23

Helene’s, In re, N.J. Dep’t of Law & Pub. Safety,

Div. of Alcoholic Beverage Control, Bulletin

1405, item 3 (1961) ............................................................19

Hollywood Café, In re, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 1393, item 2 (1961) .............................................19

Page

Administrative decisions—continued:

Jack’s Star Bar, In re, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 1667, item 3 (1966) .............................................19

Jessie Lloyd, In re, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 1045, item 7 (1955) .............................................20

Joy House, In re, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 1473, item 1 (1962) .............................................20

King Bar & Liquor Store, In re, N.J. Dep’t of Law

& Pub. Safety, Div. of Alcoholic Beverage

Control, Bulletin 1437, item 3 (1962) ..............................19

Log Cabin Inn, In re, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 279, item 8 (1938) ...............................................20

McCracken v. Caldwell, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 456, item 3 (1941) ...............................................20

Paddock Inn, In re, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 1543, item 3 (1964) .......................................20, 21

Pine Brook Diner and Marge’s Keyhole

Cocktail Lounge, In re, N.J. Dep’t of Law &

Pub. Safety, Div. of Alcoholic Beverage

Control, Bulletin 1406, item 2 (1961) ..............................19

Wardell Hotel, In re, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control,

Bulletin 1529, item 2 (1963) .............................................20

V.L. v. Safeway Stores,

No. 72-1395 (EEOC Mar. 17, 1972) ................................29

Statutes and regulations:

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, 86 Stat. 103 ......................................34

§ 2, 86 Stat. 103..................................................................35

§ 11, 86 Stat. 111................................................................35

Civil Rights Act of 1964, Pub. L. No. 88-352,

Tit. VII, 78 Stat. 253 (42 U.S.C. 2000e et seq.) ..... passim

42 U.S.C. § 2000e ..............................................................35

42 U.S.C. § 2000e-2(a)(1) ....................................................2

42 U.S.C. § 2000e-16 .........................................................35

EEOC Guidelines on Discrimination Because of

Sex, 30 Fed. Reg. 14926 (Dec. 2, 1965) ..........................15

EEOC Interpretations and Opinions of the

Commission, 35 Fed. Reg. 18692 (Dec. 6, 1970) ...........24

Sup. Ct. R. 37.6 .........................................................................1

Miscellaneous:

W.C. Alvarez, Medical Consultant Gives Advice,

Tampa Times, Sept. 18, 1958 .............................................8

Austin Lesbian Org.:

Discrimination in Employment, Goodbye to

All That, vol. 1., no. 7, Aug. 1975 ..............................37

EEOC Complaints, Goodbye to All That, vol. 1,

no. 11, Dec. 1975 .........................................................37

Harry Benjamin, The Transsexual Phenomenon

(1966) ..................................................................................11

Allan Bérubé:

My Desire for History: Essays in Gay,

Community, and Labor History (2011) .................21

Coming Out Under Fire: The History of Gay

Men and Women in World War Two (1990) ..........21

Irving Bieber, Speaking Frankly on a Once Taboo

Subject, N.Y. Times Mag., Aug. 23, 1964 .......................18

Page

Miscellaneous—continued:

Lucy Bland & Laura Downs, eds., Sexology

Uncensored: The Documents of Sexual Science

(1998) ..................................................................................17

Margot Canaday, The Straight State: Sexuality

and Citizenship in Twentieth-Century

America (2009) ..................................................... 21, 22, 37

Frank S. Caprio, Variations in Sexual Behavior

(1955) ....................................................................................8

The Homosexuals, CBS Reports (first aired

Mar. 7, 1967) ......................................................................10

George Chauncey, Gay New York: Gender, Urban

Culture, and the Making of the Gay Male

World, 1890–1940 (1994) ............................................17, 18

118 Cong. Rec. (1972)

p. 9314 .................................................................................34

p. 9331 .................................................................................34

Donald Webster Cory:

The Homosexual in America: A Subjective

Approach (1951) .....................................................9, 10

The Lesbian in America (1964) .....................................10

Comment, Transsexualism, Sex Reassignment

Surgery, and the Law, 56 Cornell L. Rev. 963

(1971) ............................................................................27, 28

Robert C. Doty, Growth of Overt Homosexuality

In City Provokes Wide Concern, N.Y. Times

(Dec. 17, 1963) ...................................................................10

John D’Emilio & Estelle B. Freedman, Intimate

Matters: A History of Sexuality in America

(3d ed. 2012) .................................................................31, 36

The Burden of the Bunnies, Det. Free Press,

Aug. 23, 1965 ......................................................................14

vii

Page

Miscellaneous—continued:

Thomas I. Emerson et al., The Equal Rights

Amendment: A Constitutional Basis for Equal

Rights for Women, 80 Yale L.J. 80 (1971) .....................37

Equal Rights 1970: Hearings on S.J. Res. 61 and

S.J. Res. 231 Before the S. Comm. on the

Judiciary, 91st Cong. 74–75 (1970) ..........................33, 34

Legal Aspects of Transsexualism and

Information on Administrative Procedures,

Erickson Educational Foundation, rev. ed. July

1971 ...............................................................................27, 28

William N. Eskridge, Jr.:

Title VII’s History and the Sex

Discrimination Argument for LGBT

Workplace Protections, 127 Yale L.J. 246

(2017) ..............................................................................6

Dishonorable Passions: Sodomy Laws in

America, 1861–2003 (2008) .......................................30

Cary Franklin:

Inventing the ‘Traditional Concept’ of Sex

Discrimination, 125 Harv. L. Rev. 1307

(2012) ............................................................................38

The Anti-Stereotyping Principle in

Constitutional Sex Discrimination Law,

85 N.Y.U. L. Rev. 1 (2010) ........................................15

Hearing Officer’s Summary and Findings, Fulton

Bar & Grill, Inc. v. State Liquor Auth., Papers

on Appeal (N.Y. App. Div. Mar. 31, 1960) .....................19

Gloria Bar & Grill v. Bruckman, Record on

Review (N.Y. App. Div. Feb. 6, 1940) ............................20

Are Women Executives People?, Harv. Bus. Rev.,

July-Aug. 1965 .............................................................13, 14

viii

Page

Miscellaneous—continued:

Ernest Havemann, Why?, Life, June 26, 1964...................18

William J. Helmer, New York’s ‘Middle-class’

Homosexuals, Harper’s, March 1963 ......................10, 18

George W. Henry, Sex Variants: A Study of

Homosexual Patterns (1941) ........................................7, 8

John Herbers, For Instance, Can She Pitch for the

Mets?, N.Y. Times, Aug. 20, 1965 .............................13, 14

Unexpected Support, Homophile Action League

Newsl. (Homophile Action League, Phila., Pa.),

Jan. 26, 1971.......................................................................26

H.J. Res. 208, 86 Stat. 1523, 92d Cong. (1972) ...................32

H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1972) ......34, 35

Karla Jay & Allen Young eds., Out of the Closets:

Voices of Gay Liberation (1972) ............................ passim

David K. Johnson, The Lavender Scare: The Cold

War Persecution of Gays and Lesbians in The

Federal Government (2004) ........................................9, 22

Christine Jorgensen, The Story of My Life,

American Weekly, Feb. 15, 22, Mar. 1, 8 & 15,

1953 .....................................................................................11

Letter from Frank Kameny to Arnold Pedowitz

& Ronald Kessler (Aug. 29, 1974) .............................26, 27

Alice Kessler-Harris, In Pursuit of Equity:

Women, Men, and the Quest for Economic

Citizenship in 20th-Century America (2001) .........12, 24

Alfred C. Kinsey et al., Sexual Behavior in the

Human Male (1948) ...........................................................9

Alfred C. Kinsey, Sexual Behavior in the Human

Female (1953) ......................................................................9

Irving Kovarksy, Fair Employment for the

Homosexual, 1971 Wash. U. L. Q. 527 (1971) ...............35

Page

Miscellaneous—continued:

Letter from Jose Lopez, EEOC to Joel Starkey

(Oct. 25, 1972) ....................................................................25

Nancy MacLean, Freedom is Not Enough: The

Opening of the American Workplace (2006) .................22

Letter from Del Martin to Council on Religion

& the Homosexual (May 20, 1971) ..................... 24, 25, 27

Minutes of Coordinating Council Meeting,

The Mattachine Society 5 (Feb. 7, 1954) .........................8

Serena Mayeri, Reasoning from Race: Feminism,

Law, and the Civil Rights Revolution (2011) ...............34

Joanne Meyerowitz:

A History of ‘Gender,’ 113 Am. Hist. Rev. 1346

(2008) ..............................................................................5

How Sex Changed: A History of

Transsexuality in the United States (1980)...........11

Kate Millet, Sexual Politics: A Manifesto for

Revolution, in Radical Feminism (Anne Koedt,

Ellen Levine & Anita Rapone eds., 1973) ......................32

Letter from Miriam Mimms, EEOC to Joel

Starkey (Oct. 28, 1972) .....................................................25

Henry L. Minton, Departing from Deviance: A

History of Homosexual Rights and

Emancipatory Science in America (2002) .....................7

Ex-GI Becomes Blonde Beauty, N.Y. Daily News,

Dec. 1, 1952 ........................................................................10

De-Sexing the Job Market, N.Y. Times,

Aug. 21, 1965 ......................................................................14

The Council on Religion and the Homosexual:

A Brief of Injustices, ONE Inst. Q. of

Homophile Stud. & ONE Mag., Oct. 1965 .....................23

Page

Miscellaneous—continued:

Tangents: News and Views, ONE Mag., Feb. 1966 ....23, 24

Oxford English Dictionary

(vol. IX 1961)....................................................................6, 7

(3d ed. 2008) .........................................................................7

Peggy Pascoe, Sex, Gender, and Same-Sex

Marriage, in Is Academic Feminism Dead?

Theory in Practice (Social Justice Group ed.

2000) ....................................................................................33

Random House Dictionary of the English

Language (Unabridged ed. 1966) .....................................6

Susan Roberts, Mexican-American Lesbian

Complains, Hera, Summer 1975 ....................................37

Arelo Sederberg, Civil Rights for Women Pose

Business Headache, L.A. Times, Oct. 6, 1964 ..............13

Reva B. Siegel, Constitutional Culture, Social

Movement Conflict and Constitutional Change:

The Case of the De Facto ERA, 94 Cal. L. Rev.

1323 (2006) .........................................................................36

Eileen Shanahan, Equal Rights Amendment is

Approved by Congress, N.Y. Times, Mar. 22,

1972 .....................................................................................34

John D. Skrentny, The Minority Rights

Revolution (2002) ........................................................12, 24

George E. Sokolsky, These Days, News-Palladium,

Dec. 7, 1960 ..........................................................................8

S. Rep. No. 92-415, 92d Cong., 1st Sess. (1971) ...........34, 35

Jess Stearn, The Sixth Man: A Startling

Investigation on the Spread of Homosexuality

in America (1961) ...................................................9, 10, 18

Timothy Stewart-Winter, Queer Clout: Chicago

and the Rise of Gay Politics (2016) ................................23

Page

Miscellaneous—continued:

A New Worry, Bunnies, St. Louis Post-Dispatch,

Aug. 27, 1965 ......................................................................13

Edward K. Strong, Jr., Vocational Interests of

Men and Women (1943) ...................................................21

Phil Tiemeyer, Plane Queer: Labor, Sexuality,

and AIDS in the History of Male Flight

Attendants (2013)..............................................................16

Sex & Employment: New Hiring Law Seen

Bringing More Jobs, Benefits for Women,

Wall St. J., June 22, 1965 .................................................13

Paul Welch, Homosexuality in America, Life,

June 26, 1964 .....................................................................10

Jean M. White, Homosexuals Are in All Kinds of

Jobs, Find Place in Many Levels of Society,

Wash. Post, Feb. 2, 1965 ..................................................18

In the Supreme Court of the United States

GERALD LYNN BOSTOCK, PETITIONER

CLAYTON COUNTY, GEORGIA, RESPONDENT

ALTITUDE EXPRESS, INC. ET AL., PETITIONERS

MELISSA ZARDA, AS EXECUTOR OF THE ESTATE OF

DONALD ZARDA, ET AL., RESPONDENTS

R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ET AL.,

RESPONDENTS

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE ELEVENTH, SECOND, AND SIXTH CIRCUITS

BRIEF OF HISTORIANS AS AMICI CURIAE

IN SUPPORT OF EMPLOYEES

INTEREST OF AMICI CURIAE

Amici are well-recognized academic historians whose

many decades of scholarly study and research focus on the

history of gender, sexuality, and law in the United States.

Pursuant to Rule 37.6, amici curiae affirm that no counsel for a

party authored this brief in whole or in part and that no person other

(1)

A summary of the qualifications and affiliations of the individual amici is provided in the appendix to this brief.

Amici file this brief solely as individuals and institutional

affiliations are given for identification purposes only.

Amici aim to provide the Court with accurate historical perspective as it considers the question of whether Title VII’s sex discrimination provision requires protecting

people against discrimination because they are lesbian,

gay, bisexual, or transgender (LGBT). Amici have examined the opinions of the Courts of Appeals in these and

related cases, in which several jurists contend that prevailing understandings of “sex”-based discrimination

around the time of Title VII’s enactment must have excluded discrimination on account of being LGBT. As professional scholars who have dedicated their careers to the

study of the history of gender, sexuality, and law, we find

this assertion to be unsupported by the historical evidence.

SUMMARY OF ARGUMENT

This brief uses historical evidence from the first decade after Title VII’s enactment to show that public understandings of the word “sex,” and of “discrimination because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), were then, as

they are now, sufficiently broad and multidimensional to

include discrimination against lesbian, gay, bisexual, and

transgender individuals.

I. In 1964, the word “sex” encompassed a variety of

than amici or their counsel has made any monetary contributions intended to fund the preparation or submission of this brief. The parties have consented to the filing of this brief, and copies of their letters

of consent are on file with the Clerk’s Office.

social meanings, as it does today. The term referred not

only to the male sex and female sex, but also to a broad

range of behaviors, social roles, and sexual practices.

Public understandings also reflected a growing awareness

of “sex variation” and LGBT individuals—not simply as

criminal or medical concerns, but as part of contemporary

American life.

II. Consistent with the public’s capacious understanding of “sex” in the 1960s, Title VII’s sex discrimination

provision was not simply viewed as prohibiting employment decisions that placed women at a comparative disadvantage to men or vice versa. Rather, the law was seen as

centrally concerned with enabling men and women to depart from conventional norms of masculinity and femininity, then called “sex roles,” without suffering detrimental

employment consequences.

III. Because public understandings closely linked

LGBT individuals with sex-role nonconformity, Title

VII’s sex discrimination provision soon raised questions

about the law’s coverage of discrimination against LGBT

individuals. Strikingly, in the provision’s first decade,

LGBT individuals filed claims seeking protection under

the sex discrimination provision. Some officials at the

Equal Employment Opportunity Commission (EEOC) interpreted Title VII to cover claims of discrimination based

on sexual orientation and transgender identity. Regional

offices received and processed these claims; some EEOC

commissioners publicly invited them.

IV. By the early 1970s, equal rights based on sex were

closely associated with equal rights for LGBT individuals

because of how clearly both developments challenged the

imposition of sex-stereotyped roles on women and men.

Both proponents and opponents of equal rights recog-

nized, and declared publicly, that prohibiting discrimination because of sex entailed proscribing discrimination

against individuals because they were LGBT. It was not

until 1975, in the context of rising anti-gay and anti-sex

equality lobbying, that the EEOC and federal courts began to articulate an anti-coverage position premised on

their unsupported speculations about Congressional intent regarding the scope of Title VII.

The historical evidence thus demonstrates that, in the

critical first decade of federal anti-discrimination law, Title VII’s prohibition on discrimination “because of . . . sex”

was capacious enough to include the discrimination suffered by LGBT individuals such as Aimee Stephens, Donald Zarda, and Gerald Lynn Bostock. Legal arguments to

the contrary are unsupported by the historical record.

ARGUMENT

Several prominent jurists in these and related cases

have reasoned that public understandings of “sex” and of

LGBT individuals in the 1960s preclude the conclusion

that Title VII’s bar on sex discrimination could have ex1

tended to LGBT persons. That logic is flawed. Public

understandings of “sex” in these years encompassed not

only the male sex and female sex but also a range of social

norms associated with masculinity and femininity. Because the public conceptualized LGBT persons largely in

terms of their failure to conform to accepted masculine

See, e.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 144–45 (2d

Cir. 2018) (en banc) (Lynch, J., dissenting); see also Hively v. Ivy

Tech Cmty. Coll. of Indiana, 853 F.3d 339, 362–63 (7th Cir. 2017) (en

banc) (Sykes, J., dissenting); Wittmer v. Phillips 66 Co., 915 F.3d 328,

333–34 (5th Cir. 2019) (Ho, J., concurring).

and feminine conventions, Title VII’s protections against

sex discrimination were thus understood within the first

decade after its passage, by supporters and opponents of

LGBT rights and by the EEOC, as potentially covering

LGBT employees.

THE HISTORICAL CONTEXT SURROUNDING TITLE

VII’S ENACTMENT FEATURED A BROAD RANGE OF

PUBLIC MEANINGS FOR THE WORD “SEX” AND

GROWING PUBLIC AWARENESS OF LGBT INDIVIDUALS

It is difficult to understand contemporary debates

about the scope of Title VII’s bar on sex discrimination or

its potential application to LGBT individuals without

some historical context about the public’s conceptions of

both “sex” and LGBT individuals themselves. That context demonstrates that conceptions of both “sex” and

LGBT persons were far more wide-ranging than commonly assumed.

A. “Sex” Encompassed a Wide Spectrum of Public Meanings in the 1960s

1. In 1964, as today, the word “sex” lent itself to a variety of social meanings. Both public and scientific discourse employed “sex” expansively, as an adjective and a

noun, to invoke sexual desire, conduct, and social roles, as

well as to refer to the male sex and female sex. Social scientists in the 1950s and early 1960s used the term sex

roles to describe culturally- or conventionally-defined behaviors expected of men and women, and psychologists

used psychological sex and sometimes sex-role identification to mean “gender identity.”2 A commonly relied-upon

dictionary of the time, the Random House unabridged dictionary of 1966, gives another rough indication of the

word’s broad reach. Although dictionary definitions often

incompletely reflect usage, the five listed definitions of

“sex” are indicative:

1. the fact or character of being either male

or female . . . . 2. either of the two groups of

persons exhibiting this character . . . . 3. the

sum of structural and functional differences

by which the male and female are distinguished, or the phenomena or behavior dependent on these differences. 4. the instinct

or attraction drawing one sex toward another, or its manifestations in life and con3

duct. 5. coitus. . . .

Note that the third definition, in stressing “behavior,”

evokes the range of social habits and characteristics—

that is, sex roles—associated with men and women. The

fourth, in identifying “manifestations” of sexual “instinct”

in “life or conduct,” encompasses a broad constellation of

sex-related practices, desires, and experiences. The 1961

Joanne Meyerowitz, A History of ‘Gender,’ 113 Am. Hist. Rev.

1346, 1354 (2008).

“Sex,” Random House Dictionary of the English Language (Unabridged ed. 1966); cf. William N. Eskridge, Jr., Title VII’s History

and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 246, 347–52 (2017).

edition of the Oxford English Dictionary, the authoritative reference on English usage over time, is in accord,

defining the term “sex” as invoking not simply male and

female organisms, but also the whole “class of phenomena

with which [the differences between male and female] are

concerned.”

2. This broad understanding of sex, as evoking a

range of sex roles, sexual expression, and sexual instincts,

shaped public knowledge about LGBT individuals. Midtwentieth century writers sometimes grouped LGBT people under the term “sex variants”—a term introduced by

psychiatrist George Henry to mean primarily persons he

considered homosexuals, though he sometimes also included individuals who wished to change their sex, re5

gardless of their sexual desires. In 1941, Henry published Sex Variants: A Study of Homosexual Patterns, a

book whose purpose Henry shorthanded as, simply, a

“Sex,” Oxford English Dictionary (vol. IX 1961). Notably, the

updated 2008 edition also includes the following usage, with examples

extending through the mid-twentieth century: “1. a. Either of the two

main categories (male and female) into which humans . . . are divided.

b. In extended use, esp. as the third sex. A (notional) third division of

humanity regarded as analogous to, or as falling between, the male

and female sexes; spec. that consisting of: (a) eunuchs or transsexuals . . . (c) homosexual people collectively.” See Oxford English Dictionary (3d ed. 2008).

Henry L. Minton, Departing from Deviance: A History of Homosexual Rights and Emancipatory Science in America 58–64 (2002).

We use homosexuality (and sometimes transsexuality) in this brief to

reference language used at the time.

“study of sex.” By the 1950s, the term “sex variants” circulated beyond the medical profession, sometimes appearing in popular media to designate homosexual per7

sons. Some LGBT activists themselves adopted the

phrase, as in the Mattachine Society’s call in 1954 for fur8

ther study of the law’s impact on “the sex variant.”

The word “sex” thus covered a broad range of meaning

in the mid-twentieth century—one that encompassed the

behavior, practices, and identities of LGBT individuals.

B. At the Same Time, the Public Was Well Aware of

LGBT Persons in American Society

By the time of Title VII’s passage in 1964, much of the

public was well aware of the presence of LGBT people

among them.

1. From the time of World War II, when draft recruiters were instructed to screen out men exhibiting “homosexual tendencies,” not only the military but the general public also recognized that some Americans departed

from conventional sexual practice. Alfred Kinsey’s publi-

George W. Henry, Sex Variants: A Study of Homosexual Patterns ix–x (1941) (emphasis added).

See, e.g., W.C. Alvarez, Medical Consultant Gives Advice, Tampa

Times, Sept. 18, 1958, at 11; George E. Sokolsky, These Days, NewsPalladium, Dec. 7, 1960, at 2.

Minutes of Coordinating Council Meeting, The Mattachine Society 5 (Feb. 7, 1954) (on file with the GLBT Historical Society, San

Francisco); see also Frank S. Caprio, Variations in Sexual Behavior

(1955) (referring to homosexuality as a form of “sex variation”).

cation in 1948 of his long-researched study, Sexual Behavior in the Human Male, had even more powerful popular

impact. Kinsey astonished readers with his finding that

37 percent of American men had experienced orgasm with

another man; his claim that sexual identity varied across

a spectrum, with no bright line dividing heterosexuals

from homosexuals; and his conclusion that there was no

“normal” or “abnormal” in human sexual behavior. Five

years later, Kinsey’s Sexual Behavior in the Human Fe10

male was similarly eye-opening and commented-upon.

Contemporary political developments also kept homosexuality in the public eye. Beginning in the early 1950s,

the federal government’s campaign to purge suspected

gay or lesbian employees, which led to more terminations

than the contemporaneous purge of supposed Communists, alerted the public to sexual variation even at high

levels of office. The virulence of the government’s persecution sparked the formation of “homophile” organiza11

tions, the initial gay and transgender rights groups.

In the early 1960s, in part because of homophile activism, newspapers, popular magazines, and other media

embarked on deeper investigations into the diversity of

LGBT lives in America. Jess Stearn’s 1961 book The

Alfred C. Kinsey et al., Sexual Behavior in the Human Male

(1948).

Alfred C. Kinsey, Sexual Behavior in the Human Female (1953).

David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in The Federal Government ch. 8 (2004).

Sixth Man—its title reflecting a misinterpretation of Kinsey’s findings as suggesting that one in six American men

was gay—became a bestseller, in part because of its sen12

sationalism.

Other examples included a sympathetic

1963 profile of New York’s ‘Middle-class’ Homosexuals in

the genteel magazine Harper’s; a front-page article in the

New York Times about the visibility of homosexuals in

Manhattan; and an extensive report on Homosexuality in

America in Life magazine, the nation’s highest-circulation

weekly family magazine, shortly before Title VII’s pas13

sage. Early in 1967, CBS aired an hour-long documentary on the subject, containing numerous interviews with

gay men and hosted by well-known reporter Mike Wal14

lace. Although most states still criminalized sodomy, the

efflorescence of journalistic coverage was far less concerned with LGBT lives as a criminal matter than as a cultural phenomenon.

2. The public was also well aware of individuals whose

sex at birth did not match their own sense of who they

Jess Stearn, The Sixth Man: A Startling Investigation on the

Spread of Homosexuality in America (1961). Donald Webster Cory,

The Homosexual in America: A Subjective Approach (1951) was an

earlier serious study, and Cory later also wrote The Lesbian in America (1964).

William J. Helmer, New York’s ‘Middle-class’ Homosexuals,

Harper’s, March 1963, at 85–92; Robert C. Doty, Growth of Overt Homosexuality In City Provokes Wide Concern, N.Y. Times (Dec. 17,

1963), at A1; Paul Welch, Homosexuality in America, Life, June 26,

1964, at 66–74.

The Homosexuals, CBS Reports (first aired Mar. 7, 1967).

were. In December 1952, the New York Daily News

broke the story of former GI Christine Jorgensen’s “sex

change” surgery. Media attention—including Jorgensen’s own five-part autobiographical account, published in

the nationally syndicated Sunday magazine American

Weekly in 1953—continued for years. Other individuals

who had sought “sex change” soon began speaking publicly about their experiences. By 1966, when Harry Benjamin published his foundational book, The Transsexual

Phenomenon, the idea of “sex change” was widespread

and Jorgensen was a household name.

In sum, by the time of Title VII’s passage in 1964, the

public’s understanding of the concept of “sex” was far

broader, and its awareness of LGBT persons far deeper,

than some jurists have suggested.

II. IN ACCORD WITH THE PUBLIC’S CAPACIOUS UNDERSTANDING OF “SEX,” TITLE VII’S PROTECTIONS AGAINST SEX DISCRIMINATION WERE UNDERSTOOD TO PROHIBIT EMPLOYERS FROM REQUIRING CONFORMITY TO SEX-ROLE EXPECTATIONS IN THE WORKPLACE

The public’s broad definitions of sex in the 1960s, as

encompassing both a person’s identity as male or female

and the characteristics and cultural practices associated

Ex-GI Becomes Blonde Beauty, N.Y. Daily News, Dec. 1, 1952.

Christine Jorgensen, The Story of My Life, American Weekly,

Feb. 15, 22, Mar. 1, 8 & 15, 1953; see also Joanne Meyerowitz, How

Sex Changed: A History of Transsexuality in the United States 64–

66 (1980).

Harry Benjamin, The Transsexual Phenomenon (1966).

with being a man or woman, governed early understandings of Title VII’s bar on sex-based discrimination. As a

result, some observers were quick to recognize the potential impact of the law on employers’ ability to require conformity to conventional sex stereotypes in the workplace.

1. The precise meaning of “sex discrimination” was

not immediately evident in the aftermath of Title VII’s

passage, in part because that term was not a well-established legal concept in 1964. Resistance to the idea that

sex discrimination was worthy of redress at all limited

meaningful enforcement of Title VII immediately after its

enactment. From the beginning, however, the paradigmatic instances of discrimination “because of . . . sex”

challenged in EEOC complaints and federal lawsuits centrally concerned the imposition of gender norms in the

workplace. Core examples included classified ads grouping job listings under the headings “Male Help Wanted”

and “Female Help Wanted”; employers holding female

employees to conventional standards of female attractiveness, such as youth, low weight, and unmarried status;

and companies excluding men or women from certain jobs

altogether. Some observers, including some EEOC officials, immediately understood that these practices were

unlawful under Title VII because they imposed sex-based

stereotypes about the type of work men and women

should do, or how men or (especially) women ought to look

and behave.

Early press coverage spotlights how far Title VII’s

Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and

the Quest for Economic Citizenship in 20th-Century America 246–66

(2001); John D. Skrentny, The Minority Rights Revolution 111–19

(2002).

prohibition on sex discrimination disrupted settled norms

about masculinity and femininity. Fear and ridicule littered articles elaborating the potential consequences of

Title VII’s sex provision. Days before the Civil Rights Act

took effect, a Wall Street Journal reporter imagined the

parade of horribles that would result:

A shapeless, knobby-kneed male “bunny”

serving drinks to a group of stunned business men in a Playboy Club.

A matronly vice president gleefully participating in an old office sport by chasing a

male secretary around a big leather-topped

desk.

A black-jacketed truck driver skillfully maneuvering a giant rig into a dime-sized dock

space—and then checking her lipstick in the

rear-view mirror before hopping out.

Businessmen balked at the idea of female pilots and loco20

motive engineers, or male “stewardesses.” Critical commentators jeered the so-called “bunny problem”—the

specter of men being hired as Playboy bunnies.

2. The prospect of women entering traditionally male

Sex & Employment: New Hiring Law Seen Bringing More Jobs,

Benefits for Women, Wall St. J., June 22, 1965, at 1.

See, e.g., ibid.; Arelo Sederberg, Civil Rights for Women Pose

Business Headache, L.A. Times, Oct. 6, 1964; John Herbers, For Instance, Can She Pitch for the Mets?, N.Y. Times, Aug. 20, 1965, at 1.

A New Worry, Bunnies, St. Louis Post-Dispatch, Aug. 27, 1965,

at 16.

jobs, and men seeking “women’s work,” sparked fears

that outlawing sex discrimination would produce masculinized women and feminized men. As one businessman

complained in 1965, “In our culture, a female is a target

for a ‘pass.’ This she must recognize. However, many

women have chosen to solve this problem by ‘de-sexing’

themselves,” including by wearing “mannish clothes.”

That August, the New York Times published a scathing

editorial titled De-Sexing the Job Market, contending that

perhaps “it would have been better if Congress had just

abolished sex itself” and calling the prospect of enforcing

Title VII’s ban on sex discrimination “revolution, chaos.”

These fears reflected anxieties about Title VII’s challenge to expectations about how women and men should

dress, speak, and comport themselves in the workplace.

But the EEOC clearly placed this challenge at the heart

of Title VII. Even in the early period of sluggish attention

to sex discrimination, Richard K. Berg, deputy general

counsel of the EEOC, declared: “The Commission is going to put the burden on the employers. If they can’t think

of any reason not to [hire women for jobs traditionally

held by men], they’d better do it.” Even the “bunny

problem,” Berg suggested, did not “obvious[ly]” merit an

exception to Title VII’s requirement. Sure enough, the

Are Women Executives People?, Harv. Bus. Rev., July-Aug.

1965, at 172.

De-Sexing the Job Market, N.Y. Times, Aug. 21, 1965, at 20.

The Burden of the Bunnies, Det. Free Press, Aug. 23, 1965, at 6.

Ibid.; see also Herbers, Can She Pitch, supra note 20.

EEOC’s earliest guidelines, issued in 1965, included as a

violation “[t]he refusal to hire an individual ‘based on ste26

reotyped characterizations of the sexes.’ ”

3. By 1971, the EEOC and federal courts recognized

that a core principle behind Title VII’s ban on sex discrimination was to allow employees to depart from conventional masculinity and femininity without facing workplace exclusion or penalty. In Phillips v. Martin-Marietta Corp., for example, this Court invalidated a company’s exclusion of women with pre-school aged children

from certain job categories, recognizing that an employer

could not exclude a particular subset of women based

upon a sex-based stereotype—that women with young

children belong at home and are not reliable workers.

The EEOC and federal courts also decisively rejected em-

EEOC Guidelines on Discrimination Because of Sex, 30 Fed.

Reg. 14926, 14927 (Dec. 2, 1965) (codified as amended 29 C.F.R.

§ 1604.2(a)(1)(ii)).

See, e.g., Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971)

(per curiam); see also Diaz v. Pan Am. World Airways, Inc., 442 F.

2d 385 (5th Cir. 1971) (rejecting defense based on customer preferences grounded in sex stereotypes). This understanding of sex discrimination as prohibiting the imposition of stereotypes to the detriment of both men and women also pervaded early constitutional sex

equality jurisprudence. See Cary Franklin, The Anti-Stereotyping

Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L.

Rev. 1 (2010); see also Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)

(invalidating exclusion of fathers from federal “mother’s insurance”

benefits); Stanton v. Stanton, 421 U.S. 7 (1975) (invalidating a state

statute requiring parents to support boys longer than girls).

ployers’ push to interpret the bona fide occupational qualification exception as a license to exclude men from traditionally female jobs and vice versa.

This broad approach to Title VII’s sex-discrimination

ban meant that, from the provision’s first years, comparative disadvantage for one sex was not a prerequisite for

relief under Title VII. Complainants succeeded, for instance, when they challenged airlines for imposing sexbased age, weight, and marital status restrictions on stewardesses, or for excluding men from flight attendant posi28

tions altogether.

Because these hiring practices enforced conformity with conventional sex roles, the EEOC

and the courts found them impermissible.

Notably, however, some employers were not simply

concerned with ensuring that only women performed

“women’s work” and men “men’s work.” They also worried about the type of men who might apply for conventionally feminine positions. Pan Am, for instance, refused

to employ male stewards not only because they lacked the

sex appeal of young single women, but also out of a more

inchoate fear: that men who performed such feminine

work might be gay—or, at least, that their presence might

lead passengers to believe they were.

See, e.g., Diaz, 442 F.2d 385.

Phil Tiemeyer, Plane Queer: Labor, Sexuality, and AIDS in the

History of Male Flight Attendants ch. 3 (2013).

III. AT A TIME WHEN THE PUBLIC COMMONLY ASSOCIATED LGBT PEOPLE WITH GENDER NONCONFORMITY, EARLY INTERPRETATIONS OF TITLE VII

OFTEN MADE ROOM FOR LGBT INDIVIDUALS AS

POTENTIAL CLAIMANTS

What made an airline like Pan Am associate a male

flight attendant with homosexuality? It was the broader,

and pervasive, cultural linkage between sexual variation

and lack of conformity to traditional norms of masculinity

and femininity—a linkage that raised immediate questions about Title VII’s applicability to LGBT employees.

A. Public Understandings Linked Being Lesbian, Gay,

Bisexual, and Transgender Together and Associated

Them All with Gender Nonconformity

In the 1960s, gay and transgender people were often

defined in the public imagination as much by their gender

nonconforming demeanor and conduct as by their sexual

practices. These beliefs were pervasive, and their impact

was felt broadly in LGBT individuals’ interactions with society.

1. The connection between homosexuality and gender nonconformity in the United States dated back at

least to the late-nineteenth century. Medical accounts of

same-sex attraction conflicted, but one widely-believed

theory held that because men were conventionally attracted to women, a man who was attracted to another

man could not be a true male, but instead must be female,

in mind and possibly in part in body. Some researchers

and popular writers explicitly identified homosexuals—a

conceptual category that often included individuals who

identified with another sex—as an “intermediate sex” or

“third sex,” blending elements of both male and female.

Although the idea of a third sex dissipated by the midtwentieth century, the association between homosexuality, transgender status, and gender nonconformity lingered well into the 1960s. Indeed, the popular association

of gay men with physical effeminacy was so pervasive that

journalists covering gay culture in the mid-1960s almost

invariably began by cautioning readers against that stereotype. As Life magazine warned in 1964, many people

still (wrongly) believed that “all homosexuals have effeminate, ‘swishy’ manners and would like nothing better . . .

than to dress like women, pluck their eyebrows and use

lipstick.”

2. Such stereotypes were not simply the stock-intrade of popular culture. They shaped the policing of gay

and transgender life and had the force of law, upheld by

George Chauncey, Gay New York: Gender, Urban Culture, and

the Making of the Gay Male World, 1890–1940 49 (1994)

Sexology Uncensored: The Documents of Sexual Science 39–72

(Lucy Bland & Laura Down eds. 1998).

Ernest Havemann, Why?, Life, June 26, 1964, at 77; see also

Stearn, Sixth Man, supra note 12, at 39; Helmer, ‘Middle-class’ Homosexuals, supra note 13, at 86; Jean M. White, Homosexuals Are in

All Kinds of Jobs, Find Place in Many Levels of Society, Wash. Post,

Feb. 2, 1965, at A1; Irving Bieber, Speaking Frankly on a Once Taboo Subject, N.Y. Times Mag., Aug. 23, 1964, at 75.

state courts and agencies. The enforcement of state liquor laws, one of the most sustained regulatory campaigns

against gay and transgender life in the 1950s and 1960s,

provides an illuminating example. Tasked with enforcing

liquor regulations that prohibited bars and restaurants

from serving homosexuals, investigators regularly

pointed to patrons’ violation of gender conventions (their

sex roles) to identify them as homosexual, even when they

observed no sexual conduct.

In 1960, for example, a New York court upheld a ruling

by the state’s Liquor Authority that the owner of Brooklyn’s Fulton Bar & Grill had permitted it to “be used as a

gathering place for homosexuals” because “the majority

of patrons were . . . wearing tight fitting trousers” and “3

male patrons walk[ed] to the rear of the premises with a

sway to their hips . . . .” New Jersey liquor officials, too,

identified patrons as homosexual or lesbian based largely

on their gender nonconforming demeanor and behavior—

identifying lesbian patrons, for instance, less through

their overtly affectionate or erotic conduct than by their

ostensibly gender-inappropriate behavior and appearance: wearing men’s trousers, button-downs, and ties; failing to wear sufficient makeup or jewelry; or engaging in

Chauncey, supra note 30, at 344–46.

Fulton Bar & Grill, Inc. v. State Liquor Auth., 205 N.Y.S.2d 37,

38 (App. Div. 1960).

Hearing Officer’s Summary and Findings, Fulton Bar & Grill,

Inc. v. State Liquor Auth., Papers on Appeal, at 68 (N.Y. App. Div.

Mar. 31, 1960).

indelicate acts like swearing or drinking beer straight

from the bottle. Often, officials explicitly conflated male

homosexuality and gender inversion, using derogatory

terms like “fag,” “fairy,” and “homosexual” interchangeably with “female impersonator” to refer to gay men or

transgender people. As late as 1964, one investigator defined a “homosexual” as, in key part, someone “who at38

tempts to act opposite their sex.”

For grooming and clothing, see, e.g., In re Pine Brook Diner and

Marge’s Keyhole Cocktail Lounge, N.J. Dep’t of Law & Pub. Safety,

Div. of Alcoholic Beverage Control, Bulletin 1406, item 2, at 3 (1961);

In re Helene’s, N.J. Dep’t of Law & Pub. Safety, Div. of Alcoholic

Beverage Control, Bulletin 1405, item 3, at 12 (1961); In re King Bar

& Liquor Store, N.J. Dep’t of Law & Pub. Safety, Div. of Alcoholic

Beverage Control, Bulletin 1437, item 3, at 5–6 (1962); In re Hollywood Café, N.J. Dep’t of Law & Pub. Safety, Div. of Alcoholic Beverage Control, Bulletin 1393, item 2, at 4 (1961). For conduct, see, e.g.,

In re Jack’s Star Bar, N.J. Dep’t of Law & Pub. Safety, Div. of Alcoholic Beverage Control, Bulletin 1667, item 3, at 7–8 (1966); In re Hollywood Café, supra at 5; In re Club Tequila, N.J. Dep’t of Law & Pub.

Safety, Div. of Alcoholic Beverage Control, Bulletin 1557, item 1, at 2

(1964).

In re Log Cabin Inn, N.J. Dep’t of Law & Pub. Safety, Div. of

Alcoholic Beverage Control, Bulletin 279, item 8, at 11 (1938);

McCracken v. Caldwell, N.J. Dep’t of Law & Pub. Safety, Div. of Alcoholic Beverage Control, Bulletin 456, item 3, at 3 (1941); In re Jessie

Lloyd, N.J. Dep’t of Law & Pub. Safety, Div. of Alcoholic Beverage

Control, Bulletin 1045, item 7, at 11 (1955); Minutes, Gloria Bar &

Grill v. Bruckman, Record on Review, at 144, 232 (N.Y. App. Div.

Feb. 6, 1940); In re Joy House, N.J. Dep’t of Law & Pub. Safety, Div.

of Alcoholic Beverage Control, Bulletin 1473, item 1, at 1 (1962).

In re Wardell Hotel, N.J. Dep’t of Law & Pub. Safety, Div. of

Alcoholic Beverage Control, Bulletin 1529, item 2, at 5 (1963). The

3. The association between LGBT people and gender

nonconformity was salient in the professional world as

well. Employer assumptions about occupational preferences built upon this linkage. Like Pan Am, many suspected that gender variant people were drawn to non-traditional jobs and, conversely, that only LGBT people

might want jobs considered atypical for their sex. For

example, the Strong Interest Vocational Blank, the gold

standard of mid-century vocational testing, asserted that

men’s interest in traditionally female jobs might indicate

homosexuality. The military likewise used occupational

data to ferret out homosexuality among male recruits; soldiers in “effeminate” occupations were eyed with particu41

lar suspicion. In detecting lesbianism among female officers, the military treated career ambition itself as a

marker for homosexuality. “[R]apid advancement” of

reason that investigators described homosexual patrons in such gendered terms was not necessarily because those patrons were unusually effeminate or masculine in presentation. It was because homoerotic affection itself was seen as intrinsically gender nonconforming.

Describing a pair of male customers singing to each other affectionately, one official speculated that they “sang into each other’s face . . .

as a female would sing perhaps to a male.” In re Paddock Inn, N.J.

Dep’t of Law & Pub. Safety, Div. of Alcoholic Beverage Control, Bulletin 1543, item 3, at 9 (1964).

Allan Bérubé, My Desire for History: Essays in Gay, Community, and Labor History ch. 14 (2011).

Edward K. Strong, Jr., Vocational Interests of Men and Women

240 (1943).

Allan Bérubé, Coming Out Under Fire: The History of Gay Men

and Women in World War Two 20 (1990).

women through the ranks, warned one 1952 Navy memo,

was a tell-tale sign of lesbianism, as “female homosexuals”

worked hard to “compensate for or to avoid suspicion of

[their] sexual weakness.” Women working in construction and other trades, whether they were straight or gay,

were also widely perceived to be lesbians and harassed on

that basis.

In sum, at the time of Title VII’s enactment, an individual’s LGBT status and departure from traditional sex

roles were inextricably intertwined in the public consciousness.

B. When Title VII Took Effect, Some Claimants and

EEOC Officials Assumed that the Bar on Sex Discrimination Could Cover LGBT Employees

Because LGBT individuals were linked so closely with

gender nonconformity, and because Title VII was seen to

challenge conventional gender expectations on the job,

early interpretations of Title VII sometimes brought both

sexual orientation and transgender status directly within

the provision’s ambit.

1. As soon as Title VII was enacted, some LGBT people saw themselves in its provision banning discrimination

Margot Canaday, The Straight State: Sexuality and Citizenship

in Twentieth-Century America 210 (2009) (internal quotation marks

omitted).

Men in the trades “baited their female workmates by calling

them ‘dykes.’ ” Nancy MacLean, Freedom is Not Enough: The Opening of the American Workplace 280 (2006).

because of sex. Accordingly, LGBT individuals soon began requesting assistance from the EEOC. That LGBT

claimants brought such matters to a government agency

at all is significant. Most gay and transgender people in

these years did not seek legal redress for mistreatment,

because they expected from the law not protection, but rather exposure and punishment. The purge of gays and

lesbians from the federal civil service had only recently

ended. LGBT people were routinely harassed by police

and rarely had any legal recourse. “Lawyers who have

represented homosexuals have told us that most homosexuals . . . will not fight their cases through the courts,”

the Council on Religion and the Homosexual reported in

1965. That some LGBT people nevertheless sought redress from the EEOC underscores how powerfully the

word “sex,” and the bar on discrimination because of sex,

communicated to them the possibility of protection.

2. Mirroring the agency’s initial ambivalence about

the sex discrimination provision generally, the EEOC’s

response to these early claims was uneven. In February

1966, some gay and lesbian individuals who experienced

adverse employment actions reported that they were

See generally Johnson, supra note 11.

Timothy Stewart-Winter, Queer Clout: Chicago and the Rise of

Gay Politics 16–25, 41–57, 68–89 (2016).

The Council on Religion and the Homosexual: A Brief of Injustices, ONE Inst. Q. of Homophile Stud. & ONE Mag., Oct. 1965, at 8.

“benefited” by contacting the EEOC. By contrast, a cursory opinion by the EEOC’s general counsel in 1966

stated that “[a]n employer does not commit an unlawful

employment practice by failing to hire or by discharging

an individual because the individual is a homosexual.”

Crucially, however, the general counsel’s opinion applied

to the addressee only and was not considered binding for

the agency as a whole.

As the EEOC began to enforce the sex discrimination

prohibition in earnest in the late 1960s, it also grew more

receptive to LGBT individuals’ discrimination claims. In

1971, for example, the homophile activist Del Martin

wrote to colleagues about her meeting with Stanley Haber, then EEOC general counsel. Martin reported Haber’s clarification that the 1966 general counsel’s letter

“could not be construed as policy,” and that “in effect

there has been no decision as to whether Title VII’s prohibition against sex discrimination does or does not apply

to homosexuals.”

Tangents: News and Views, ONE Mag., Feb. 1966, at 25.

EEOC Op. Gen. Couns. M108-66 (Feb. 2, 1966), Digest of EEOC

Legal Interpretations: Part II, LRX 1892d.

EEOC Interpretations and Opinions of the Commission, 35 Fed.

Reg. 18692 (Dec. 6, 1970).

Kessler-Harris, supra note 18, at 267; Skrentny, supra note 18,

at 115–19.

Letter from Del Martin to Council on Religion & the Homosexual

(May 20, 1971) (on file with the GLBT Historical Society, San Francisco).

The EEOC did not discourage these gay rights pioneers but rather invited them to file claims with the

agency. Martin wrote:

The EEOC office took our names and addresses and said they would send us documents on policy and procedure. We were

told we had at least two options: (1) to

gather as much specific data as possible on

job discrimination as it pertains to homosexuals and present our case directly to the

commissioners for a determination, or

(2) have individuals file complaints with

their local offices.

Some individuals followed the general counsel’s advice. In 1972, for example, one man sent simultaneous

queries to two regional EEOC offices asking whether Title VII covered “homosexuality.” He received responses

within three days of each other. One office declared that

Title VII prohibited discrimination in employment based

on sex, “therefore covering homosexual.” The second office contradicted the first, saying that homosexuality was

“not within the generic classification specified in the law,”

and noting that there were “no Commission guidelines”

specifying its inclusion. The official cited what he called

Ibid.

Letter from Miriam Mimms, EEOC to Joel Starkey (Oct. 28,

1972) (on file with Frank Kameny Papers, Library of Congress).

Letter from Jose Lopez, EEOC to Joel Starkey (Oct. 25, 1972)

(on file with Frank Kameny Papers, Library of Congress).

the “legislative history” of Title VII, suggesting that “sex

refers to gender male/female,” while homosexuality “is

sexual activity.” In addition to contradicting the first,

this second letter is striking for its resort to (an invented)

legislative history rather than any available agency guidance. Evidently, the EEOC had still not established an

official position, allowing some offices to see “homosexuality” as covered by the statute.

Some officials in the EEOC’s national office, too, saw

discrimination because of “sex” as encompassing diverse

sexual meanings. Sonia Pressman Fuentes of the General

Counsel’s Office endorsed broad coverage at a 1971 seminar on Title VII, as reported in an activists’ newsletter.

Fuentes declared that the EEOC “interprets sex to mean

both sexual identity and sexual orientation.” She added

that “if a case of discrimination involving homosexuality

were to come before the Commission which had gone

through the proper channels and which was found to be

valid, the Commission would definitely prosecute the dis57

criminator.” The newsletter reported no disagreement

with Fuentes’s interpretation from her fellow panelists,

the director of the U.S. Commission on Civil Rights and

the head of Cleveland’s regional EEOC office.

Additional corroboration of the EEOC’s sympathy toward LGBT complainants came some years later, when

Ibid.

Unexpected Support, Homophile Action League Newsl. (Homophile Action League, Phila., Pa.), Jan. 26, 1971, at 2–3.

Ibid.

Frank Kameny, a gay rights pioneer and the liaison between D.C.’s homophile activists and the EEOC, reported

that the General Counsel’s Office still viewed discrimination against homosexual employees as within the agency’s

ambit. Writing to the attorneys representing an EEOC

clerk fired for homosexuality by the Civil Service Commission, Kameny reported that the General Counsel’s Office was “embarrassed” by the man’s firing, seeing it as “a

violation by the government of everything that the EEOC

is trying to accomplish and for which it stands.”

3. The EEOC appeared to extend Title VII protection to transgender people as well. The Erickson Educational Foundation, an early advocacy organization for

transsexuals, reported on cases from California and Georgia in which transgender people received guidance from

the EEOC. In a 1971 pamphlet on Legal Aspects of

Transsexualism and Information on Administrative

Procedures, the Foundation provided advice on how to file

complaints and assured readers that Title VII applied “to

transsexuals who are seeking employment and to those

whose employment is terminated following sex reassignment surgery, where the individual’s work was previously

Letter from Frank Kameny to Arnold Pedowitz & Ronald Kessler (Aug. 29, 1974) (on file with Frank Kameny Papers, Library of

Congress). Del Martin noted that Kameny “has been established” as

the community’s liaison to the EEOC. Letter from Martin to Council,

supra note 51, at 3.

considered satisfactory.” A 1971 article in the Cornell

Law Review confirmed that “[a] Georgia transsexual allegedly encountered job discrimination after reassignment surgery” and that the EEOC had “offered its assis61

tance if the problem should arise again.”

Additional evidence that transgender persons brought

complaints to the EEOC and, at least occasionally, received responses appears in a 1972 “Final Decision Cover

Sheet” located in EEOC records at the National Archives.

These records are one-page summaries that provide basic

case information, including the names of the complainant

and employer, the date of the decision, and the agency’s

finding (cause/no cause), as well as a brief notation of the

type of adverse employment action involved. In one revealing case, the Commissioners rendered their final decision as:

“No Cause/sex (transsexual) – discharge.”

Here, the EEOC investigated a complaint by a

transgender person who complained that their discharge

Legal Aspects of Transsexualism and Information on Administrative Procedures, Erickson Educational Foundation, rev. ed. July

1971, at 11.

Comment, Transsexualism, Sex Reassignment Surgery, and the

Law, 56 Cornell L. Rev. 963, 1003 n.265 (1971). Based on both this

article and the Erickson Foundation document, supra note 60, it appears the Georgia complainant missed the filing deadline for a formal

complaint, but at least one California case proceeded to litigation.

E.B. v. Twin City Milk Prods. Ass’n, No. 72-1394 (EEOC Mar.

8, 1972) (on file with National Archives, College Park, Md.).

violated Title VII’s sex discrimination prohibition. The

agency’s finding of “no cause” nonetheless suggests that

the EEOC treated transgender status as within the law’s

purview. Significantly, the “no cause” decision is distinguishable from the “non-jurisdiction” decisions that appear in the contemporaneous files for complaints that

were not filed within the statutory deadlines, that involved employers not covered by the law, or that were otherwise beyond the EEOC’s legal authority. Instead, it is

similar to other “no cause” sheets in the same file—for

classifications undoubtedly covered by federal law—that

read:

“NO CAUSE/race (Negro)”

“No Cause/Sex (Female)”

Moreover, the way the finding is written—“No Cause/sex

(transsexual)”—suggests that at this moment “transsexuality” was treated by the EEOC as directly in the province of discrimination claims based on “sex.”

IV. NOT UNTIL 1975, IN THE CONTEXT OF GROWING OPPOSITION TO THE GAY RIGHTS MOVEMENT AND TO

WOMEN’S EQUAL RIGHTS, DID THE EEOC MOVE TO

EXCLUDE POTENTIAL LGBT CLAIMANTS FROM

PROTECTION UNDER TITLE VII

As LGBT Americans became increasingly visible and

vocal in the early 1970s, both advocates and opponents of

anti-discrimination legislation commonly linked LGBT

V.L. v. Safeway Stores, No. 72-1395 (EEOC Mar. 17, 1972) (on

file with National Archives, College Park, Md.).

E.H. v. Nat’l Biscuit Co., No. 72-1447 (EEOC Mar. 23, 1972) (on

file with National Archives, College Park, Md.).

rights and the women’s rights movement. This linkage,

alongside the growing anti-gay and anti-women’s rights

activism that emerged over the course of the 1970s, provided a key backdrop both for the EEOC’s decision to narrow Title VII’s sex discrimination provision in 1975 and

for the federal courts’ eventual determinations that discrimination on the basis of sexual orientation or

transgender status fell outside the scope of Title VII.

A. A Newly Vocal Gay and Transgender Rights Movement in the Early 1970s Often Linked Gay and

Transgender Rights with Equal Rights for Women

Although LGBT individuals were far from invisible

when Congress passed the 1964 Civil Rights Act, by the

early 1970s gay and transgender life had exploded into the

public square. The Stonewall Riots, in which gay and

transgender patrons fought back against police harassment in a New York City bar, occurred the same year as

a D.C. Circuit decision protecting certain gay civil servants from being fired for conduct unrelated to job perfor65

mance. The following years saw not only the repeal of

sodomy statutes across the country, but also burgeoning

attention to LGBT issues in politics and everyday life.

The early 1970s ushered in the first gay pride parades; the

expansion of organizations to support and serve

transgender people; campaigns for local gay rights ordinances, including some modeled after the Civil Rights Act

Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969).

William N. Eskridge, Jr., Dishonorable Passions: Sodomy Laws

in America, 1861–2003 (2008).

of 1964; the organization of professional caucuses of gay

librarians, social workers, academics, and many others;

and the growth of openly gay businesses and neighborhoods in American cities. Meanwhile, personal “coming

out” conversations among friends and family members

brought LGBT issues close to home for Americans across

the country.

As political movements for gay rights and liberation

sprang up alongside movements for women’s rights, their

common effort to challenge conventional sex roles became

increasingly plain. As one author wrote in 1971, “Gay lib68

eration is a struggle against sexism.”

Another proclaimed that a “ ‘real man’ and ‘real woman’ are not so by

their chromosomes and genitals, but by their respective

degrees of ‘masculinity’ and ‘femininity,’ and by how

closely they follow the sex-role script in their relation69

ships with individuals and society.” A Chicago gay liberation group called for “the abolition of sex-role stereo70

types.” Another essayist contended that “[t]he oppression of women and that of gay people are interdependent

See John D’Emilio & Estelle B. Freedman, Intimate Matters: A

History of Sexuality in America ch. 13 (3d ed. 2012).

Allen Young, Out of The Closets, Into The Streets, in Out of the

Closets: Voices of Gay Liberation 7 (Karla Jay & Allen Young eds.,

1972).

Gay Revolution and Sex Roles, in Jay & Young, id. at 252.

Chicago Gay Liberation, Working Paper for the Revolutionary

People’s Constitutional Convention, in Jay & Young, id. at 346.

and spring from the same roots,” though they “take dif71

ferent forms.” Lesbian and bisexual women activists

identified the connections between female and gay liberation with particular poignancy, connecting “male supremacy” with “rigid sex roles” and “enforced . . . heterosexu72

ality.” Thus, by the early 1970s, the essential similarities

in how sex role stereotypes operated to limit the lives of

heterosexual and LGBT women and men had burst into

the open.

B. Opponents of Equal Rights for Women Also Closely

Linked Women’s Rights with Legal Advances for

LGBT People

1. Opponents of equal rights, too, appreciated how a

shared struggle against enforced conformity to “sex

roles” connected equal rights for women and for LGBT

people. The debate over the Equal Rights Amendment

(ERA), which occurred contemporaneously with the 1972

amendment of Title VII, illustrates this connection. The

ERA’s proposed language provided that neither states

nor the federal government could abridge or deny “equal73

ity under the law . . . on account of sex.” That language

set off alarm bells among skeptics such as Senator Sam

Ervin, who immediately identified the capaciousness of

Gay Revolution and Sex Roles, supra note 69, at 254–55.

Radicalesbians, The Woman-Identified Woman, in Jay & Young,

supra note 68, at 172; Kate Millet, Sexual Politics: A Manifesto for

Revolution, in Radical Feminism 367 (Anne Koedt, Ellen Levine &

Anita Rapone eds., 1973).

H.J. Res. 208, 86 Stat. 1523, 92d Cong. (1972).

the word “sex” within anti-discrimination law as the

ERA’s key liability. Ervin protested in 1970 that the

problem with an amendment designed to stop sex discrimination on the basis of sex was that “the word sex is im74

precise in its exact meaning.”

Ervin was not wrong. As with Title VII, the ERA’s

proposed bar on sex discrimination inspired bold visions

of what that legal change might mean. “Legal distinction

on the basis of sex is no longer reasonable,” remarked one

lawyer to the American Bar Association about the ERA in

1970, “[a]nd I am willing to apply that view to any and all

sets of circumstances the mind may conceive.” She elaborated that “[even] the right to marry . . . cannot be premised on sex distinctions which serve to deny equal protec76

tion of the law to all persons.”

2. That the logic of the ERA’s sex discrimination prohibition implied the abolition of all sex-based legal distinctions, including laws penalizing LGBT individuals,

alarmed opponents. Ervin invoked the congressional testimony of the eminent constitutional scholar and Harvard

Law Professor Paul Freund, who told Congress that “if

the law must be as undiscriminating concerning sex as it

is toward race, it would follow that the laws outlawing

wedlock between members of the same sex would be as

Peggy Pascoe, Sex, Gender, and Same-Sex Marriage, in Is Academic Feminism Dead? Theory in Practice 46 (Social Justice Group

ed. 2000) (citation omitted) (emphasis added).

Id. at 89–90 (citation omitted).

Id. at 90 (citation omitted).

invalid as laws forbidding miscegenation.”

Leading

ERA sponsor Senator Birch Bayh attempted to neutralize

such an interpretation by specifying that sex nondiscrimination meant only that the marriage of two men must be

treated the same as the marriage of two women. These

assurances did not satisfy Ervin. Citing Freund’s testimony, Ervin introduced an amendment to the ERA specifically excluding from coverage “any law prohibiting

sexual activity between persons of the same sex or the

marriage of persons of the same sex.” The Senate defeated the Ervin amendment, and the ERA passed the

Senate 84-8 on March 22, 1972.

Two days later, the Equal Employment Opportunity

Act of 1972, which amended Title VII, became law. Embracing the position of leading women’s rights organizations—and, by the early 1970s, the EEOC itself—that sex

discrimination deserved significant attention and enforce82

ment resources, Congress clarified that sex discrimination was “no less serious than other prohibited forms of

Equal Rights 1970: Hearings on S.J. Res. 61 and S.J. Res. 231

Before the S. Comm. on the Judiciary, 91st Cong. 74–75 (1970).

118 Cong. Rec. 9331 (1972).

118 Cong. Rec. 9314 (1972).

Eileen Shanahan, Equal Rights Amendment is Approved by

Congress, N.Y. Times, Mar. 22, 1972, at 1.

Pub. L. No. 92-261, 86 Stat. 103.

Serena Mayeri, Reasoning from Race: Feminism, Law, and the

Civil Rights Revolution 55–56 (2011).

discrimination” and should be “accorded the same degree

of social concern” as discrimination based on race and

other characteristics. It also expanded the EEOC’s jurisdiction to cover more private employers and to reach

educational institutions and government employers. But

Congress took no steps to clarify the status of LGBT individuals under Title VII.

C. In the Context of Rising Anti-Gay and Anti-Sex Equality Lobbying, the EEOC in 1975 Decided that Title

VII’s Sex Discrimination Provision Did Not Protect

LGBT Complainants

1. The greater visibility of LGBT life and of movements for women’s and gay liberation during the early

1970s, so full of possibility for many, was also doubleedged: It produced an immediate backlash, including in

employment. The increased “visibility of the homosexual,” observed a professor of business administration in

1971, “probably makes it more difficult for him to earn a

living at the present time.”

The hostility inspired in some circles by the LGBT

community’s social and legal gains would resound

throughout the 1970s. Its early reverberations included

Phyllis Schlafly’s STOP ERA campaign, commenced in

S. Rep. No. 92-415, 92d Cong., 1st Sess. 7 (1971); H.R. Rep. No.

92-238, 92d Cong., 1st Sess. 4–5 (1972).

§ 2, 86 Stat. 103 (42 U.S.C. § 2000e); § 11, 86 Stat. 111 (42 U.S.C.

§ 2000e-16).

Irving Kovarksy, Fair Employment for the Homosexual, 1971

Wash. U. L. Q. 527, 531 (1971).

1972, which popularized the idea that the ERA would

mandate unisex restrooms, legalize same-sex marriage,

and draft women into the military—with all of the conno86

tations of lesbianism that those prospects conjured.

Some proponents of women’s rights soon tried to disavow

any linkage to LGBT rights, fearing that Schlafly’s arguments would—as they eventually did—prevent the ERA’s

ratification.

Subsequent reverberations would also take aim more

directly at the gains of LGBT activists, including successes in repealing criminal laws and challenging LGBT

employees’ exclusion from the civil service. A loose coalition of anti-LGBT activists soon emerged, epitomized in

Anita Bryant’s 1977 “Save Our Children” campaign,

which fought to repeal an antidiscrimination ordinance in

Florida, and a California initiative that urged the termination of teachers who were gay or who condoned homo88

sexuality.

2. In that context of growing anti-gay and antiwomen’s rights activism, the EEOC backtracked from its

more generous earlier treatment of LGBT claimants. In

For the historic association between women’s military service

and lesbianism, see Canaday, supra note 42, ch. 5. For the linkage

between the ERA and the drafting of women into the armed forces,

see Thomas I. Emerson et al., The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 80 (1971).

Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94

Cal. L. Rev. 1323, 1393–94 (2006).

D’Emilio & Freedman, supra note 67, at 346–47.

1975, for the first time, the EEOC issued two “non-jurisdiction” opinions declaring that homosexuality was out89

side of Title VII’s purview. “Non-jurisdiction” statements pertaining to homosexuality also began to appear

in the agency’s “Final Decision Cover Sheets.”

Even so, some EEOC offices still treated homosexuality as coming under Title VII’s purview. In 1975, for example, the newsletter of an Austin lesbian organization

reported on EEOC complaints filed by two Texas lesbi91

ans, one of which had gone into conciliation phase. Why

did the local office proceed to conciliate the case even as

the agency’s national office moved to exclude LGBT people from Title VII’s coverage? One might surmise that

the association between legal protections against sex-stereotyping and legal rights for LGBT employees remained

sufficiently intuitive to some officials to justify handling

these cases under Title VII’s protective framework.

3. Courts also began, in 1975, to take an anti-cover-

EEOC Dec. No 76-67, 1975 WL 4475 (Nov. 21, 1975); EEOC Dec.

No. 76-75, 19 Fair Empl. Prac. Cas. (BNA) 1823, 1975 WL 342769

(Dec. 4, 1975).

Cover Sheets for Final Decisions (Boxes 1-5), EEOC Records,

RG 403, National Archives, College Park, Md. (These are all the extant records for this period.)

Discrimination in Employment, Goodbye to All That (Austin

Lesbian Org., Austin, Tx.), vol. 1., no. 7, Aug. 1975, at 3; EEOC Complaints, Goodbye to All That (Austin Lesbian Org., Austin, Tx.), vol. 1,

no. 11, Dec. 1975, at 7; see also Susan Roberts, Mexican-American

Lesbian Complains, Hera, Summer 1975, at 33.

age position premised on speculations about Congressional intent with regard to the scope of Title VII—an in92

tent that Congress itself never articulated. This position

became the so-called “common sense” interpretation that

some courts have ascribed to Title VII, and one on which

those wishing to deny Title VII protection to LGBT peo93

ple heavily rely. That “common sense” interpretation

was, however, an “invented tradition”—one that did not

develop until the mid-1970s, and that masked far more

multifarious approaches to Title VII on the ground in the

decade prior. In those first, formative years following

Title VII’s enactment, more historical evidence suggests

that Title VII included LGBT people in its prohibition on

sex discrimination than that it did not.

A close examination of the historical record reveals

that, in the first decade following Title VII’s passage, prevailing understandings of the bar on “discrimination because of . . . sex” and of its potential application to LGBT

individuals preclude the claim that Title VII could not

See, e.g., Smith v. Liberty Mut. Ins., 395 F. Supp. 1098 (N.D. Ga.

1975), aff’d, 569 F.2d 325 (5th Cir. 1978); Voyles v. Ralph K. Davies

Medical Ctr., 403 F. Supp. 456 (N.D. Cal. 1975).

Troublingly, this is sometimes true even where courts have concluded that Title VII’s bar on sex discrimination should be understood

to cover claims based on individuals’ LGBT status. See, e.g., Hively

v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 353 (7th Cir. 2017)

(en banc) (Posner, J., concurring).

Cary Franklin, Inventing the ‘Traditional Concept’ of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012).

have encompassed discrimination against LGBT employees. Legal arguments that rely on a contrary understanding of this history should, accordingly, be rejected.

CONCLUSION

For the foregoing reasons, this Court should affirm

the judgments of the Second and Sixth Circuits and reverse the judgment of the Eleventh Circuit.

Respectfully submitted.

CHANAKYA A. SETHI

Counsel of Record

ANGELA CAI

WILKINSON WALSH +

ESKOVITZ LLP

130 West 42nd St.,

Suite 1402

New York, NY 10036

(929) 264-7758

csethi@wilkinsonwalsh.com

RAKESH N. KILARU

WILKINSON WALSH +

ESKOVITZ LLP

2001 M St. N.W., 10th Floor

Washington, DC 20036

JULY 2019

APPENDIX

APPENDIX: LIST OF AMICI CURIAE

Margot Canaday is Associate Professor of History at

Princeton University. She is a legal and political historian

who studies gender and sexuality in modern America.

Her first book, The Straight State: Sexuality and Citizenship in Twentieth Century America (2009), won seven

prizes, including the Association of American Law

Schools’ Order of the Coif Biennial Book Award, the

American Society for Legal History’s Cromwell Book

Prize, the Organization of American Historians’ Ellis

Hawley Prize, the American Political Science Association’s Gladys M. Kammerer Award, the American Studies

Association’s Lora Romero Prize, the Committee on

LGBT History’s John Boswell Prize, and the Lambda Literary Award for LGBT Studies. Canaday has won fellowships from the Social Science Research Council, the

Princeton University Society of Fellows, the Radcliffe Institute for Advanced Study, the National Endowment for

the Humanities, and the American Council of Learned

Societies. She is currently completing a book on the history of LGBT people and employment in modern America.

George Chauncey is the DeWitt Clinton Professor of

History at Columbia University. He previously taught at

the University of Chicago and at Yale University, where

he served as chair of the History Department and co-director of the Yale Research Initiative on the History of

Sexualities. He is the author of Gay New York: Gender,

Urban Culture, and the Making of the Gay Male World,

1890-1940 (1994), which won the Merle Curti Award for

the best book in American social history and the Frederick Jackson Turner Award for the best first book in any

(1a)

field of American history from the Organization of American Historians. He is also the author of Why Marriage?

The History Shaping Today’s Debate over Gay Equality

(2004) and the co-editor of Hidden from History: Reclaiming the Gay and Lesbian Past (1989), Gender Histories and Heresies (1992), and Thinking Sexuality

Transnationally (1999).

Nancy F. Cott is the Jonathan Trumbull Research

Professor of American History at Harvard University,

where she has taught since 2002. Between 2002 and 2014

she was simultaneously the Pforzheimer Family Director

of the Schlesinger Library on the History of Women in

America at the Radcliffe Institute for Advanced Study.

Her scholarly work centers on the history of women, gender, sexuality, citizenship, feminism, family, and marriage. She began her career as Assistant Professor of

History and American Studies at Yale University and departed there in 2001 as Sterling Professor. She was

elected a member of the American Academy of Arts and

Sciences in 2008, and as president of the Organization of

American Historians in 2016–17. She has held fellowships

from the Guggenheim Foundation, the Center for Advanced Study in the Behavioral Sciences, Harvard Law

School, and the National Humanities Center, among others. Her books include The Bonds of Womanhood:

‘Woman’s Sphere’ in New England, 1780–1835 (1977),

The Grounding of Modern Feminism (1987), and Public

Vows: A History of Marriage and The Nation (2000),

among others, and her articles and reviews have appeared in many journals, including the American Historical Review, Journal of American History, Journal of

Social History, Yale Review, American Quarterly, Boston Review, and the New York Review of Books. She has

been invited to lecture around the nation and the world,

including in France, Poland, Japan, and China.

Alice Kessler-Harris is the R. Gordon Hoxie Professor of American History in honor of Dwight David Eisenhower, emerita, at Columbia University. Her books include Out to Work: A History of Wage-Earning Women

in the United States (1982 and 2001) and In Pursuit of

Equity: Women, Men, and the Quest for Economic Citizenship in Twentieth Century America (2001). Her articles and reviews have appeared in the American Historical Review, the Journal of American History, the New

York Times, and other leading publications. She has

served as president of the Organization of American Historians, the American Studies Association, the Labor and

Working-Class History Association, and, currently, the

Society of American Historians.

Anna Lvovsky is Assistant Professor of Law at Harvard Law School. Her historical work focuses on the regulation of gender, sexuality, and morality in the twentieth

century, with an emphasis on the policing of LGBT communities and the cultural history of homosexuality. Her

first book, Vice Patrol: Urban Policing and the Discovery

of the Gay World, 1920–1970, is forthcoming with the University of Chicago Press. As a dissertation, the project

received the 2016 Julien Mezey Dissertation Award from

the Association for the Study of Law, Culture, and the

Humanities. Her other work has appeared in the Journal

of Urban History, the Harvard Law Review, and the

University of Pennsylvania Law Review. Prior to joining the faculty at Harvard, she was an Academic Fellow

at Columbia Law School.

Nancy MacLean is the William H. Chafe Professor of

History and Public Policy at Duke University. She is an

alumna of the first graduate program in U.S. women’s history, founded at the University of Wisconsin in 1982, and

formerly the Peter B. Ritzma Professor in the Humanities at Northwestern University, where she also served

as department chair. She is the award-winning author of

several books, the most relevant of which for this brief are

Behind the Mask of Chivalry: The Making of the Second

Ku Klux Klan (1995), Freedom is Not Enough: The

Opening of the American Workplace (2008), and The

American Women’s Movement, 1945-2000: A Brief History with Documents (2008). Her scholarship has received more than a dozen major prizes and awards, and

has been supported by fellowships from the American

Council of Learned Societies, the National Endowment

for the Humanities, the National Humanities Center, the

Russell Sage Foundation, and the Woodrow Wilson National Fellowships Foundation. Her most recent book

was a finalist for the National Book Award, and the winner of the Los Angeles Times Book Award in Current Affairs, the Lannan Foundation Cultural Freedom Award,

and the Lillian Smith Book Award.

Serena Mayeri is Professor of Law and History at the

University of Pennsylvania Law School, where she

teaches and writes about employment discrimination, legal and constitutional equality, gender, sexuality, and the

family. Her first book, Reasoning from Race: Feminism,

Law, and the Civil Rights Revolution (2011), received the

Littleton-Griswold Prize from the American Historical

Association for the best book in sociolegal history and the

Darlene Clark Hine Award for the best book on AfricanAmerican women’s and gender history from the Organization of American Historians. Her scholarship has also

appeared in numerous edited volumes and in publications,

including the Yale Law Journal, the California Law Review, and Constitutional Commentary. Mayeri holds a

secondary appointment in the Department of History at

Penn, where she is also a member of the Core Faculty and

the Executive Board of the Program on Gender, Sexuality, and Women’s Studies. Since 2012, she has served on

the Executive Committee of the Andrea Mitchell Center

for the Study of Democracy. Mayeri was named a Distinguished Lecturer by the Organization of American Historians in 2016.

Joanne Meyerowitz is the Arthur Unobskey Professor of History and American Studies at Yale University.

She is president of the Organization of American Historians and past editor of the Journal of American History

(1999–2004). At Yale she chaired the American Studies

Program (2012–2015) and the Department of History

(2018) and currently serves as director of the Yale Research Initiative on the History of Sexualities. Her books

include How Sex Changed: A History of Transsexuality

in the United States (2002), which won the American Library Association’s Stonewall Book Award for non-fiction, and the edited collection Not June Cleaver: Women

and Gender in Postwar America, 1945–1960 (1994). Her

articles have been published in, among others, the American Historical Review, Journal of American History,

Journal of Women’s History, GLQ: A Journal of Lesbian

and Gay Studies, and the Bulletin of the History of Medicine.

Katherine Turk is Associate Professor of History and

Adjunct Associate Professor of Women’s and Gender

Studies at the University of North Carolina at Chapel

Hill. Her first book, Equality on Trial: Gender and

Rights in the Modern American Workplace (2016) won

the 2017 Mary Jurich Nickliss Prize from the Organization of American Historians, and the dissertation from

which it is drawn received that organization’s LernerScott Prize. Turk received her doctorate in history, with

distinction, from the University of Chicago in 2011. She

was a 2011–12 Jerome Hall Postdoctoral Fellow at Indiana University’s Maurer School of Law and a 2018–19

Faculty Fellow at the Radcliffe Institute for Advanced

Study. Turk’s work has been supported by the American

Society for Legal History, the Andrew W. Mellon Foundation, and the National Endowment for the Humanities,

among others. Her writing has appeared in the Journal

of American History, the Law and History Review,

Slate, the Washington Post, and elsewhere. She is currently writing a history of the National Organization for

Women.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.