Dead Hand Vogue

For decades, courts read employment antidiscrimination laws’ prohibition of sex discrimination to exclude gay, lesbian, bisexual, and transgender workers’ sexual orientation and gender identity discrimination claims—purportedly because the claims were not linked to employees’ status as a man or a woman. And while significant doctrinal developments have afforded some gender-nonconforming persons critical workplace safeguards under sex antidiscrimination laws, many older decisions that deemed sexual orientation and transgender discrimination claims to be outside the ambit of sex discrimination still control. These decades-old precedents all suffer from the same analytical error: a failure to adhere to the principle that antidiscrimination law does not protect groups; it protects individuals. Because courts in the 1970s and 1980s focused on groups rather than individuals, judges were able to rely on legislative dead hand as performative analysis to keep LGBTQ people out of the law’s workplace protections and reinforce gender variants’ second-class status.

This Article traces the antiindividualist origins of sex discrimination doctrine that has improperly kept LGBTQ workers outside of antidiscrimination protections and argues that the protective promise of antidiscrimination law is realized most fully when courts take individuals seriously.