AUSTIN, Texas — A hardline Christian activist and an evangelical church in North Texas are arguing that federal employment protections for LGBT workers don’t apply to bisexuals.
In a brief filed with the federal appeals court last week, their lawyers argued the U.S. Supreme Court’s 2020 decision barring employment discrimination based on sexual orientation or gender identity does not apply to bisexuals — as long as bi men are being discriminated against “on equal terms” as bi women.
“An employer who discriminates on account of an employee or job applicant’s bisexual orientation (or conduct) cannot engage in ‘sex’ discrimination as defined,” the lawyers wrote, “because that employer would have taken the exact same action against an identically situated individual of the opposite biological sex.”
They filed the brief the day it was due, Sept. 21, midway through Bisexuality Awareness Week.
Bisexuals made up the majority, nearly 57%, of Americans who identified as LGBT in a recent Gallup poll. The percentage of Americans identifying as bisexual, or attracted to more than one gender, is highest among those born between the mid-to-late 1990s and the early 2010s; nearly one in six members of Generation Z who were surveyed identified as bisexual.
Former Texas solicitor general Jonathan Mitchell and Gene Hamilton, with the Trump-affiliated American First Legal, are representing the plaintiffs. Their clients are Braidwood Management, a business owned by anti-LGBT activist Steven Hotze, and Bear Creek Bible Church in Keller.
If they win, employers with a sincere religious belief would be carved out of the 2020 ruling in Bostock v. Clayton County that barred sex-based discrimination in the workplace.
Mitchell sued the U.S. Equal Employment Opportunity Commission in 2018, arguing that employers with religious objections should be able to hire and fire employees based on their gender identity or sexual orientation. Last year, U.S. District Judge Reed O’Connor ruled largely in his favor.
But the judge sided with the federal government on two issues — so-called bisexual conduct and certain transgender health care procedures.
In their reply to that ruling with the 5th Circuit Court of Appeals, Hamilton and Mitchell argue the Texas judge erred on these issues. The lawyers explained their reasoning like this: The Supreme Court’s decision said that an employer cannot treat two people differently solely based on their sex under federal employment discrimination rules known as Title VII.
This means, according to their argument, an employer cannot fire a gay man for being attracted to men if it would not also fire a woman for being attracted to men. But that same employer is in the clear if it discriminates equally against all bisexuals because it is not treating bi men and bi women differently, the lawyers argued.
“The text of Title VII prohibits sex discrimination only with respect to the sex of the affected employee or job applicant,” they wrote. “There is nothing in Title VII that prohibits employers from discriminating because of the ‘sex’ of an employee or job applicant’s sexual or romantic partners.”
Hamilton and Mitchell also argued that the Bostock ruling gave employers the green light to fire a transgender worker for getting hormone therapy or gender-affirming surgery as long as they would fire a worker of the opposite sex for the same behavior.
“An employer who refuses to employee [sic] biological men who have had breast implants or breast-augmentation surgery has not violated Title VII if he would equally refuse to employ women who obtain these treatments,” they wrote.
The key to determining whether sex discrimination has taken place is determining whether a worker of the opposite sex would be treated the same, the lawyers concluded, as Justice Neil Gorsuch wrote in the majority opinion in Bostock.
“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,” Gorsuch wrote, not mentioning bisexual workers. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The government is appealing the Texas judge’s ruling that was unfavorable to it. In their brief to the appeals court, the government’s lawyers argue the Christian plaintiffs have no standing and said the Texas judge made a mistake protecting religious employers from workplace discrimination claims.
It also pushed back against the plaintiffs’ arguments about bisexual workers.
“The district court properly recognized that it is impossible to define bisexuality without reference to both the employee’s sex and the sex of the employee’s partners,” the government’s lawyers wrote.