Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race,color, religion, sex, [and] national origin.” 42 U. S. C.§2000e–2(a)(1). Neither “sexual orientation” nor “genderidentity” appears on that list. For the past 45 years, billshave been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included“gender identity” as well.2 But to date, none has passedboth Houses.
Last year, the House of Representatives passed a bill thatwould amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R.5, 116th Cong., 1st Sess. (2019), but the bill has stalled inthe Senate. An alternative bill, H. R. 5331, 116th Cong.,1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority ofthe other branches, the Court has essentially taken H. R.5’s provision on employment discrimination and issued itunder the guise of statutory interpretation.4 A more brazenabuse of our authority to interpret statutes is hard to recall.
