FordHarrison attorneys Greg Grisham and Frank Day's article, "Circumventing Congress: The Use of Sex-Stereotyping Theory to Expand Protected Classes Under Title VII," was published in the Federalist Society Review, Volume 17, Issue 1.
"Neither sexual orientation nor gender identity is a protected category under Title VII of the Civil Rights Act of 1964 ("Title VII"), which prohibits discrimination in employment "because of . . . race, color, religion, sex, or national origin." The term "sex" was not defined in the statute, and the legislative history includes few references that can be used to help determine the intended extent of this protected class. Hence, the question of whether discrimination on the basis of sex could be interpreted to encompass gender identity and sexual orientation has been left to the courts to decide."