Amicus Curiae Brief — R.G. & G.R. Harris Funeral Homes, Inc., Petitioner v. Equal Employment Opportunity Commission, et al.
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
v.
CLAYTON COUNTY, GEORGIA, RESPONDENT
ALTITUDE EXPRESS, INC. ET AL., PETITIONERS
v.
MELISSA ZARDA, AS EXECUTOR OF THE ESTATE OF
DONALD ZARDA, ET AL., RESPONDENTS
R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER
v.
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
ii
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
iv
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
v
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
vi
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
ix
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
x
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
xi
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
v.
CLAYTON COUNTY, GEORGIA, RESPONDENT
ALTITUDE EXPRESS, INC. ET AL., PETITIONERS
v.
MELISSA ZARDA, AS EXECUTOR OF THE ESTATE OF
DONALD ZARDA, ET AL., RESPONDENTS
R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER
v.
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)
2
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.
3
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-
4
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
1
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).
5
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.
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
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
6
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
2
Joanne Meyerowitz, A History of ‘Gender,’ 113 Am. Hist. Rev.
1346, 1354 (2008).
3
“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).
7
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
4
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
4
“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).
5
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.
8
6
“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-
6
George W. Henry, Sex Variants: A Study of Homosexual Patterns ix–x (1941) (emphasis added).
7
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.
8
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”).
9
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
9
“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
9
Alfred C. Kinsey et al., Sexual Behavior in the Human Male
(1948).
10
11
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).
10
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
12
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).
13
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.
14
The Homosexuals, CBS Reports (first aired Mar. 7, 1967).
11
were. In December 1952, the New York Daily News
broke the story of former GI Christine Jorgensen’s “sex
15
change” surgery. Media attention—including Jorgensen’s own five-part autobiographical account, published in
the nationally syndicated Sunday magazine American
16
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
17
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
15
Ex-GI Becomes Blonde Beauty, N.Y. Daily News, Dec. 1, 1952.
16
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).
17
Harry Benjamin, The Transsexual Phenomenon (1966).
12
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
18
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
18
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).
13
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
19
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
21
specter of men being hired as Playboy bunnies.
2. The prospect of women entering traditionally male
19
Sex & Employment: New Hiring Law Seen Bringing More Jobs,
Benefits for Women, Wall St. J., June 22, 1965, at 1.
20
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.
21
A New Worry, Bunnies, St. Louis Post-Dispatch, Aug. 27, 1965,
at 16.
14
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’
22
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
23
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
24
held by men], they’d better do it.” Even the “bunny
problem,” Berg suggested, did not “obvious[ly]” merit an
25
exception to Title VII’s requirement. Sure enough, the
22
Are Women Executives People?, Harv. Bus. Rev., July-Aug.
1965, at 172.
23
De-Sexing the Job Market, N.Y. Times, Aug. 21, 1965, at 20.
24
The Burden of the Bunnies, Det. Free Press, Aug. 23, 1965, at 6.
25
Ibid.; see also Herbers, Can She Pitch, supra note 20.
15
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
27
children belong at home and are not reliable workers.
The EEOC and federal courts also decisively rejected em-
26
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)).
27
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).
16
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
29
lead passengers to believe they were.
28
29
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).
17
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,
18
30
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
31
“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
32
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
30
George Chauncey, Gay New York: Gender, Urban Culture, and
the Making of the Gay Male World, 1890–1940 49 (1994)
31
Sexology Uncensored: The Documents of Sexual Science 39–72
(Lucy Bland & Laura Down eds. 1998).
32
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.
19
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
33
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
34
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
35
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
33
Chauncey, supra note 30, at 344–46.
34
Fulton Bar & Grill, Inc. v. State Liquor Auth., 205 N.Y.S.2d 37,
38 (App. Div. 1960).
35
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).
20
indelicate acts like swearing or drinking beer straight
36
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
37
transgender people. As late as 1964, one investigator defined a “homosexual” as, in key part, someone “who at38
tempts to act opposite their sex.”
36
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).
37
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).
38
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
21
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
39
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
40
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).
39
Allan Bérubé, My Desire for History: Essays in Gay, Community, and Labor History ch. 14 (2011).
40
Edward K. Strong, Jr., Vocational Interests of Men and Women
240 (1943).
41
Allan Bérubé, Coming Out Under Fire: The History of Gay Men
and Women in World War Two 20 (1990).
22
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
42
[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
43
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
42
Margot Canaday, The Straight State: Sexuality and Citizenship
in Twentieth-Century America 210 (2009) (internal quotation marks
omitted).
43
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).
23
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
44
ended. LGBT people were routinely harassed by police
45
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
46
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
44
See generally Johnson, supra note 11.
45
Timothy Stewart-Winter, Queer Clout: Chicago and the Rise of
Gay Politics 16–25, 41–57, 68–89 (2016).
46
The Council on Religion and the Homosexual: A Brief of Injustices, ONE Inst. Q. of Homophile Stud. & ONE Mag., Oct. 1965, at 8.
24
47
“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
48
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
49
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
50
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
51
to homosexuals.”
47
Tangents: News and Views, ONE Mag., Feb. 1966, at 25.
48
EEOC Op. Gen. Couns. M108-66 (Feb. 2, 1966), Digest of EEOC
Legal Interpretations: Part II, LRX 1892d.
49
EEOC Interpretations and Opinions of the Commission, 35 Fed.
Reg. 18692 (Dec. 6, 1970).
50
Kessler-Harris, supra note 18, at 267; Skrentny, supra note 18,
at 115–19.
51
Letter from Del Martin to Council on Religion & the Homosexual
(May 20, 1971) (on file with the GLBT Historical Society, San Francisco).
25
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
52
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
53
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”
54
specifying its inclusion. The official cited what he called
52
Ibid.
53
Letter from Miriam Mimms, EEOC to Joel Starkey (Oct. 28,
1972) (on file with Frank Kameny Papers, Library of Congress).
54
Letter from Jose Lopez, EEOC to Joel Starkey (Oct. 25, 1972)
(on file with Frank Kameny Papers, Library of Congress).
26
the “legislative history” of Title VII, suggesting that “sex
refers to gender male/female,” while homosexuality “is
55
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
56
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
58
the head of Cleveland’s regional EEOC office.
Additional corroboration of the EEOC’s sympathy toward LGBT complainants came some years later, when
55
Ibid.
56
Unexpected Support, Homophile Action League Newsl. (Homophile Action League, Phila., Pa.), Jan. 26, 1971, at 2–3.
57
Ibid.
58
Ibid.
27
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
59
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
59
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.
28
60
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:
62
“No Cause/sex (transsexual) – discharge.”
Here, the EEOC investigated a complaint by a
transgender person who complained that their discharge
60
Legal Aspects of Transsexualism and Information on Administrative Procedures, Erickson Educational Foundation, rev. ed. July
1971, at 11.
61
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.
62
E.B. v. Twin City Milk Prods. Ass’n, No. 72-1394 (EEOC Mar.
8, 1972) (on file with National Archives, College Park, Md.).
29
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:
63
“NO CAUSE/race (Negro)”
“No Cause/Sex (Female)”
64
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
63
V.L. v. Safeway Stores, No. 72-1395 (EEOC Mar. 17, 1972) (on
file with National Archives, College Park, Md.).
64
E.H. v. Nat’l Biscuit Co., No. 72-1447 (EEOC Mar. 23, 1972) (on
file with National Archives, College Park, Md.).
30
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
66
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
65
66
Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969).
William N. Eskridge, Jr., Dishonorable Passions: Sodomy Laws
in America, 1861–2003 (2008).
31
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
67
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
67
See John D’Emilio & Estelle B. Freedman, Intimate Matters: A
History of Sexuality in America ch. 13 (3d ed. 2012).
68
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).
69
70
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.
32
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
71
Gay Revolution and Sex Roles, supra note 69, at 254–55.
72
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).
73
H.J. Res. 208, 86 Stat. 1523, 92d Cong. (1972).
33
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
75
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
74
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).
75
Id. at 89–90 (citation omitted).
76
Id. at 90 (citation omitted).
34
77
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
78
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
79
marriage of persons of the same sex.” The Senate defeated the Ervin amendment, and the ERA passed the
80
Senate 84-8 on March 22, 1972.
Two days later, the Equal Employment Opportunity
81
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
77
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).
78
118 Cong. Rec. 9331 (1972).
79
118 Cong. Rec. 9314 (1972).
80
Eileen Shanahan, Equal Rights Amendment is Approved by
Congress, N.Y. Times, Mar. 22, 1972, at 1.
81
82
Pub. L. No. 92-261, 86 Stat. 103.
Serena Mayeri, Reasoning from Race: Feminism, Law, and the
Civil Rights Revolution 55–56 (2011).
35
discrimination” and should be “accorded the same degree
of social concern” as discrimination based on race and
83
other characteristics. It also expanded the EEOC’s jurisdiction to cover more private employers and to reach
84
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
85
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
83
S. Rep. No. 92-415, 92d Cong., 1st Sess. 7 (1971); H.R. Rep. No.
92-238, 92d Cong., 1st Sess. 4–5 (1972).
84
§ 2, 86 Stat. 103 (42 U.S.C. § 2000e); § 11, 86 Stat. 111 (42 U.S.C.
§ 2000e-16).
85
Irving Kovarksy, Fair Employment for the Homosexual, 1971
Wash. U. L. Q. 527, 531 (1971).
36
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
87
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
86
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).
87
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).
88
D’Emilio & Freedman, supra note 67, at 346–47.
37
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
90
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-
89
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).
90
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.)
91
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.
38
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
94
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
92
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).
93
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).
94
Cary Franklin, Inventing the ‘Traditional Concept’ of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012).
39
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)
2a
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,
3a
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.
4a
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
5a
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
6a
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.