Yale philosopher and legal scholar collaborated on recent SCOTUS case
Yale faculty members Robin Dembroff and Issa Kohler-Hausmann were relieved when the Supreme Court announced its landmark June 15 ruling that federal civil rights law protects gay and transgender people from discrimination in the workplace. But the two — who co-wrote an amicus brief for the case — do not consider the decision a complete victory.
The case, Bostock v. Clayton County, Georgia, questioned whether Title VII of the 1964 Civil Rights Act — which bans discrimination on the basis of sex, race, religion, color, or national origin — protects employees from discrimination on the basis of gender identity and sexual orientation. It consolidated the cases of three individuals: two who were fired for being gay, and one who was fired for being transgender. Before the recent Supreme Court ruling, it was still legal in most states to discriminate on the basis of sexual orientation and gender identity.
In a 6-3 vote, the court ruled that federal law protects against workplace discrimination of gay and transgender employees. The majority opinion was written by Justice Neil Gorsuch, who said: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Gorsuch’s test for discrimination — whether substituting the opposite sex into the workplace situation would have resulted in a different outcome — is not an adequate one, and may ultimately be harmful, said Dembroff, an assistant professor of philosophy in the Faculty of Arts & Sciences (FAS), and Kohler-Hausmann, a professor at Yale Law School and FAS associate professor of sociology.
“It will leave a lot of marginalized people hung out to dry, basically,” said Dembroff, who identifies as transgender and uses they/them pronouns. “If we get a case about androgyny or that involves a bisexual, for example … this test won’t help those people.”
Dembroff and Kohler-Hausmann are among three Yale faculty members who wrote an amicus brief for the case. Law School Professor William Eskridge also filed one.
“What was unusual about our brief is that we are Supreme Court outsiders, and it was signed by nearly 80 philosophy professors from across the nation,” said Kohler-Hausmann. Their brief was submitted by the Denver law firm of Brownstein, Hyatt, Farber Schreck LLP. (Only lawyers can file amicus briefs, so Dembroff was not listed as an official author.)
Dembroff and Kohler-Hausmann had connected at Yale before the Supreme Court decided to hear the case due to their shared interest in the topic of social categories, including those related to marginalized sexual groups. Kohler-Hausmann, who has an active pro bono legal practice in New York, has written other amicus briefs, but Dembroff had never contributed to one before.
Dembroff — whose teaching and scholarly interests focus on social ontology, feminist philosophy, and metaphysics — said that the first part of the brief argues that discrimination because of same-sex sexual attraction or gender nonconformity is “sex-specific” discrimination. In that part, Dembroff and Kohler-Hausmann made the case that the word “sex” in Title VII cannot be divorced from the social meanings associated with it, such as expectations and stereotypes about sexual attraction and gender presentation. An employer who fires both men and women for being gender non-conforming, Dembroff pointed out, still discriminates on the basis of sex, because the employer enforces sex-specific rules about how men and women ought to be.
A teacher and scholar of criminal law, sociology of law, empirical legal studies, and social and legal theory, Kohler-Hausmann addressed the second part of the brief, which deals with the statutory issues of the case. Among other topics, Dembroff and Kohler-Hausmann tackled the argument, espoused by conservative jurists and others, that the firing of gay and transgender persons cannot be considered sex discrimination because it was not recognized as such when Title VII was adopted in 1964.
“The dissents’ argument, that Title VII doesn’t protect employees from discrimination because of sexual orientation or gender nonconformity because no one in 1964 thought that it was wrongful is a bizarre one,” said Kohler-Hausmann. “That argument basically holds that nothing that was not ‘publicly’ considered discriminatory on the basis of sex, race, national origin, and so on in 1964 can’t be recognized as discriminatory in 2020 under this statute. It implies that the point of the 1964 Civil Rights Act was to freeze in time the judgments of some ‘public’ — i.e. straight white men in power — about what is or is not discriminatory vis-a-viz these categories.’”
She adds, “Our whole point is that what that statute [the 1964 Civil Rights Act] is conferring upon the courts is to determine what’s discriminatory on the basis of sex. In 1964, people didn’t think the ‘Mad Men’ type of sexual harassment was discriminatory either. It is our view that the language of the statute makes clear that the courts will have to make normative, moral decisions when they are deciding what counts as discriminatory on the basis of sex. In its decision, this court did recognize that.”
Having the perspective of a philosopher in laying out rational legal arguments in the amicus brief was an enormous benefit, Kohler-Hausmann said. “Lawyers often get stuck in doctrine and don’t always step back and say, ‘What do we mean when we say this?’ We don’t always question assumptions, which is what philosophers like Robin do for a living.”
“A lot of legal reasonings have to do with philosophical assumptions,” added Dembroff. “Philosophers often get bogged down in the details, [but] the law could use some philosophers to look at the details.”
Dembroff said that in their work on the Supreme Court case and other topics, “the personal is professional is philosophical.” They have made it a point, they said, to be a “public philosopher” by engaging, through their writing and speaking, with a variety of audiences in and outside of academia.
“One of the things undergraduates often say when they decide to major in philosophy is that their parents complain that philosophy doesn’t matter and they’ll never get a job,” said Dembroff. “This [the work on the Supreme Court case] shows that philosophy really does matter. These kinds of questions and the ability to step back and question fundamental assumptions in the way we treat each other, and the rules we make, is so important. … I’m excited about the decision and the brief but also about the setting of precedent in my field for how philosophy can insert itself in important public discussions.”
Since their brief was not cited in the Supreme Court’s decision, Dembroff and Kohler-Hausmann said they’ll never know whether their work influenced the justices. Regardless, said Kohler-Hausmann, “we are pretty proud of our contribution.”