Dead Hand Vogue
32 Pages Posted: 11 Aug 2019 Last revised: 17 Aug 2019
Date Written: August 7, 2019
For decades, courts read employment anti-discrimination laws’ prohibition of sex discrimination to exclude gay, lesbian, bisexual, and transgender workers’ sexual orientation and gender identity discrimination claims — purportedly because the claims were not linked to employees’ status as a man or a woman. And while significant doctrinal developments have afforded some gender-nonconforming persons critical workplace safeguards under sex anti-discrimination laws, many older decisions that deemed sexual orientation and transgender discrimination claims to be outside the ambit of sex discrimination still control. These decades’ old precedents all suffer from the same analytical error: a failure to adhere to the principle that anti-discrimination law does not protect groups; it protects individuals. Because courts in the 1970s and 1980s focused on groups rather than individuals, judges were able to rely on legislative dead hand as performative analysis to keep LGBTQ people out of the law’s workplace protections and reinforce gender variants’ second-class status. This Article traces the anti-individualist origins of sex discrimination doctrine that has improperly kept LGBTQ workers outside of anti-discrimination protections and argues that the protective promise of anti-discrimination law is realized most fully when courts take individuals seriously.
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