Volume 19

More Than Just “Sex:” Title VII, the Expanding Meaning of Sex Discrimination, and the Court’s Role in Correcting Injustice

by Charly Shane Gilfoil

In the forty years since the enactment of the Civil Rights Act of 1964, courts have gradually accepted an expanded meaning of “sex” in their interpretation of Title VII’s prohibition of discrimination “because of sex.” With little encouragement, suggestion, or guidance from Congress, courts have evaluated employment discrimination claims and determined whether the plaintiff ’s experience violates Title VII. This Note argues that, in doing so, courts have expanded who and what claims fit under the category of “sex discrimination” to include specific types of harm likely not contemplated by the 88th Congress, such as discrimination against transgender individuals. Furthermore, this Note argues that expanding the types of harm covered by Title VII is proper and within an Article III judge’s authority. The judiciary must expand the law to encompass and incorporate underrepresented perspectives so that statutes intended to remedy the lasting effects of historical oppression and marginalization truly have teeth.

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