The Supreme Court’s decision on Monday in Bostock v. Clayton County—which extended employment discrimination protection to LGBTQ people based on Title VII of the 1964 Civil Rights Act—hinged on the briefest of phrases: “because of sex.” Among those with a taste for historical anecdote, it’s long been passed down that this language was added to the bill because segregationist Rep. Howard Smith, D-Virginia, thought that it would sound so ridiculous that it would sink the legislation’s chances. (It’s a good story. Look at that racist troll self-own!)
But that narrative, enjoyable though it may be, is not quite complete, wrote Christina Wolbrecht, political scientist and author of The Politics of Women’s Rights: Parties, Positions, and Change, in a Twitter thread. “Smith later claimed he introduced the ‘sex’ amendment as a joke,” she wrote. “Yes, it was introduced by a segregationist … but BECAUSE women’s rights advocates had laid the groundwork for DECADES, and BECAUSE women members of Congress were there to shepherd it through the long legislative process.” With this added context, Smith’s little “accident” looks a bit more like somebody else’s well-laid plan.
I called Wolbrecht up to find out more. Our conversation has been edited and condensed for clarity.
Rebecca Onion: So Howard Smith, Democrat from Virginia, who inserted “because of sex” into Title VII of the Civil Rights Act, was a segregationist. But he had other commitments that might have motivated him. What were those?
Christina Wolbrecht: Part of this history is just these stories of long alliances. Howard Smith was around 80 years old in 1964. Like a lot of Southern Democrats, he’d been in office forever. His connection with the National Woman’s Party was that he had often been a sponsor of the Equal Rights Amendment in the House. From the time Alice Paul and the National Woman’s Party proposed the ERA in the 1920s, through when it was passed by both houses of Congress and sent to the states for ratification in the early 1970s, the amendment was introduced in almost every Congress.
Why would Smith do this? Between the 1920s and the time Congress was drafting the Civil Rights Act of 1964, the discussion among progressives and women’s rights advocates had to do with what the best way was to guarantee women’s equality. The National Woman’s Party thought the way was to say that men and women should be treated exactly the same in front of the law. But there was a long-standing, well-established tradition coming out of the Progressive Movement, saying that groups that suffered discrimination and faced other barriers needed protective laws that treated them differently, so [for example] that women workers didn’t have to carry as much weight, or work long hours.
In the early 20th century, the Supreme Court basically said that all these attempts by labor unions to get the government to limit hours that laborers have to work, or protect health and safety, were not the business of the government, since that interfered with the “right to contract.” Courts said, If they’re offering x amount of money, for y amount of hours, labor has the freedom to do something else, and it wasn’t the government’s business to intervene.