Women’s Afternoon: What the Congressional Record Can—and Cannot—Tell us about the Meaning of “Sex” Under Title VII

Abstract

Editors’ NoteThis essay reviews the Congressional debate surrounding the addition of the term “sex” to Title VII of the Civil Rights Act of 1964. We included this essay because it serves as a reminder that the narratives we construct regarding legal and legislative history are often at risk of oversimplification. As the Justices of the Supreme Court deliberate and consider recent oral arguments regarding whether the term “sex” extends legal protections to persons on the basis of sexual orientation or gender identity, the Congressional Record from February 8, 1964 suggests one lesson: There are limits to relying on historical dialogues that exclude or mock marginalized voices. That is, if many of the proclaimed supporters of an amendment advancing women’s equality supported it solely to undermine the passage of civil rights legislation, how instructive can it be to speculate about what they intended by the term “sex”? While this essay does not answer this question, it suggests that the sincere supporters of the amendment—and even those opposed to it on the grounds it would impede passage of the legislation—were fundamentally concerned with advancing equality for any and all groups who had faced discrimination.