PIERRE, S.D. -- South Dakota has joined 14 other states in court documents siding with employers accused of discrimination based on sexual orientation in three cases being considered by the U.S. Supreme Court.
In their amici curiae filed on Friday, Aug. 23, South Dakota Attorney General Jason Ravnsborg and 14 other state attorneys general argued that Title VII of the Civil Rights Act of 1964 -- which prohibits workplace discrimination on the basis of race, religion, ethnicity and sex -- does not cover workplace discrimination based on LGBTQ+ status.
"Title VII prohibits only 'sex' discrimination, and the plain meaning of 'sex' is biological status as male or female, not sexual orientation or gender identity," the attorneys general wrote.
The argument runs counter to what LGBTQ+ advocacy groups have argued and court precedent has decided: that the word "sex" in Title VII's prohibition on sex-based discrimination can be interpreted to include discrimination based on sexual orientation, gender identity and transgender status.
According to the U.S. Equal Employment Opportunity Commission, "sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex."
"Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII," the Commission says online.
But the attorneys general argue that the word "sex" is not defined in the statute, and therefore, the courts are required to interpret it based on its "plain and unambiguous meaning," which they said is "distinct from 'sexual orientation,' 'gender identity' or 'transgender status.'"
They also argued that interpreting Title VII to envelope workplace discrimination based on LGBTQ+ status would overstep the judicial branch's power, stepping into Congress's territory.
"The Constitution assigns to Congress, not the courts, the job of making policy," the argument reads. "The question whether to extend those laws to prohibit discrimination based on sexual orientation or gender identity requires additional sensitive decisions, especially in the Title IX context.
"Congress should make those choices, not this Court," it concludes."
In addition to Ravnsborg, the attorneys general of Tennessee, Nebraska, Texas, Alabama, Alaska, Arkansas, Idaho, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, West Virginia and Kentucky signed the amici curiae. The three cases in question come from the Eleventh, Second and Sixth Circuit U.S. Courts of Appeals.
The South Dakota state Legislature during its 2019 legislative session considered several bills which the American Civil Liberties Union of South Dakota fought, saying they discriminated against transgender individuals, citing Title VII. ACLU-SD Policy Director Libby Skarin in a written statement called Friday's amici curiae a "cruel, unnecessary move."
"By choosing to sign on to this brief, Attorney General Jason Ravnsborg is sending a message to LGBTQ South Dakotans that their highest elected government officials don’t believe they should live free from discrimination," Skarin said. "No one should have to fear that they can be fired just because of who they are."
The attorneys general wrote that the "question presented in these cases is not whether federal law should prohibit discrimination based on sexual orientation or gender identity," but is instead "much simpler: Does Title VII, as enacted by Congress in 1964 and as subsequently amended, prohibit those forms of discrimination?"
In their opinion: No. The U.S. Supreme Court's opinion is yet to be seen.