This is a three-part follow up on a piece I wrote for Slate magazine on whether discrimination against people taking prescription birth control is illegal under federal anti-discrimination law.
What does pregnancy have to do with birth control? Clearly, there is some overlap: women take birth control to avoid becoming pregnant, only women can become pregnant, and only women can take prescription birth control. The latter two facts may change at some point in the distant future, but at the moment, they hold true.
I argued that federal anti-discrimination law, which outlaws discrimination “because of sex” (i.e., being male or female) also outlaws discrimination on the basis of whether or not someone takes prescription birth control. I used pregnancy discrimination as an example, not only for the reasons stated above, but because the history of pregnancy discrimination law in the US helps us understand how the Courts and Congress have disagreed in the past on what counts as “discrimination because of sex.”
In 1964, Congress passed Title VII of the Civil Rights Act, which stated, in part, that it’s illegal to discriminate against someone “because of sex.” That was pretty much all it said. It didn’t define what “because of sex” means. The courts had to figure that out all on their own. Is discrimination against someone who wears make up sex discrimination? What about discrimination against a woman who doesn’t wear make up? What about discrimination against short or light people, since women tend to be shorter and to weigh less?
But this is what courts do: they take the text of the law, limited as it is, and apply it to an endless set of real-world facts.
So, the question arose: is discrimination against pregnant people discrimination against women? The Supreme Court said No, not once, but twice, explicitly noting that pregnancy discrimination divides people “into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.” That is, not all women are pregnant all the time. So, if you discriminate against only pregnant people, you won’t discriminate against all women, only the small subset that happens to be pregnant at that moment. Nevermind that you’ll end up discriminating against most women eventually, since most women get pregnant at least once at some point in their lives, and nevermind that you won’t discriminate against any men. If you have a problem with pregnancy, that doesn’t mean you have a problem with women, per se, or so said the Court.
Of course, I think this is ridiculous. I think that a problem with pregnant people is, by definition, a problem with women. Could you have a problem with children generally? Sure. Maybe you think the earth is overpopulated and you just can’t stand the thought of anyone procreating. Then go ahead, fire everyone who procreates. But if you go about it by punishing pregnancy, then you’re selectively punishing women.
Congress agreed and passed the Pregnancy Discrimination Act. The act didn’t just say “it’s illegal to discriminate because of sex and also it’s illegal to discriminate against pregnant people.” The law redefined “discrimination because of sex” to include “discrimination because of pregnancy.” That’s a big difference. Congress didn’t just say that pregnancy discrimination is wrong, it said that when you have a problem with pregnancy, you have a problem with women.
Moreover, the act was passed in direct response to the Supreme Court opinions cited above. Congress didn’t just say “from hereon out, pregnancy discrimination is illegal.” Instead, Congress said that having a problem with pregnancy has always been, by definition, a problem with women. The Courts misunderstood what Congress meant, and here Congress was clarifying: when we said that you couldn’t discriminate “because of sex” we meant, you can’t discriminate on the basis of something only women can do. A Senator at the time was clear: “For, it seems only commonsense, that since only women can become pregnant, discrimination against pregnant people is necessarily discrimination against women, and that forbidding discrimination based on sex therefore clearly forbids discrimination based on pregnancy.”
Similarly, being a woman means, by definition, being someone who can take prescription contraception to avoid having children. Currently, men can’t do it. Plus, most women do it at some point in their lives. This doesn’t mean that if you don’t take the pill you aren’t a woman, just as never having children doesn’t make you less of a woman. Not all women become pregnant and take the pill, but only women will ever become pregnant or take the pill. That’s what Congress did when it passed the Pregnancy Discrimination Act — it said, sex discrimination means punishing people for something only women can do.
In my last post I praised the Western Washington District Court as the only court so far to recognize that birth control discrimination was clearly intended to be outlawed by Congress. The court wrote elegantly that the Pregnancy Discrimination Act “is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to be pregnant. Read in the context of Title VII as a whole, it is a broad acknowledgment of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including the benefits an employer provides to its employees.”
Too bad the Washington District Court opinion isn’t binding on any court wishing to disagree. Too bad the only other court to have explicitly taken up the issue of birth control discrimination — the Eighth Circuit — thought it wasn’t sex discrimination, using pretty much the same logic the Supreme Court used before the passage of the Act. And too bad the Eighth Circuit’s opinion is binding on ten federal courts covering six states. And too bad that other courts are making similar logical errors, as is evidenced by the recent Texas District Court opinion holding that discriminating against people who lactate isn’t sex discrimination.
The courts may come around, without Congress having to intervene, but given the recent caselaw, I wouldn’t hold my breath.