Dehumanization 'Because of Sex': A Neutral Approach to the Rights of Sexual Minorities Under Multiaxial Analysis
57 Pages Posted: 10 Jan 2020
Date Written: December 27, 2019
As the Court evaluates the scope of sex under Title VII this Term, narrowing discourse over the ends versus the means of coverage endangers the very meaning of discrimination. Absent from the scholarship is an accurate appraisal of Title VII’s trait and causation requirements — in these cases, “because of sex” — that rebuts the classification rules that courts have long claimed to be familiar, fair, and inevitable. This Article first identifies, then theorizes, a historic consensus of lower courts since 2015 that adopted a viewpoint-neutral approach to “sex” as a socially defined trait (the “post-2015 consensus”). These decisions present a doctrinal correction only in part, however. In the most prominent argument from this Term, scholars and civil rights advocates invariably treat sex stereotyping as an all-purpose tool to detect social animus against LGBTQIA+ individuals (“sexual minorities”). However, this ebullient view ignores the costs of limiting Title VII to a dimorphic paradigm of sex. Other approaches such as Zarda v. Altitude Express, Inc.’s “but-for” test incorrectly conflate the breadth of a protected trait with the cause of the discrimination. These doctrinal gaps will only grow as the administrative state increasingly expands the scope of sex beyond a fixed binary.
This Article argues that the evidentiary jurisprudence driving Title VII’s substantive work is unnecessarily regressive, due to historic ties to constitutional classification and its identity politics. It provides an original account of the principles driving the post-2015 consensus, by highlighting juridical bias and the unworkability of the old rules. As a doctrinal correction, these courts sought to return to the statute’s broader command to evaluate social construction in detecting subordination. Arguments in the trio of LGBT cases this Term regressed despite courts’ recent openness to recognize sex as pluralistic. If the reasoning in the trio of cases this Term unnecessarily equates “but-for” classification with causation, the vitality of Title VII may be undermined even if plaintiffs prevail.
Against this backdrop, the Article introduces “multiaxial analysis,” a framework to identify the role of Title VII’s traits along the following axes — the individual self, the defendant employer, society, and the state. These axes interactively generate animus whenever harms arise because of dissonant views of one’s protected trait or traits. This wholly contextual approach to subordination can convey intersectional dynamics that inhere in all discrimination. Multiaxial analysis is a theoretical model that responds to what courts have sought for decades and implemented in part in the post-2015 consensus. A civil rights framework and its public narratives, in short, must be non-formulaic to give full effect to a normative statute.
Keywords: Employment Law, Civil Rights, Constitutional Law, Gender, Sexuality, LGBTQIA+, Intersectionality, Jurisprudence
JEL Classification: J7, J71, K31
Suggested Citation: Suggested Citation