The Real Story Behind “Because of Sex”

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.

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Why do you think the story of the amendment gets told the way it does—why does the addition of those words get characterized as something almost random, a chance of history, instead of the product of advocates’ work?  

Honestly, that interpretation comes from evidence from the time period. An example would be that the actual first director of the Equal Employment Opportunity Commission—which was convened to enforce that part of the law—called the provision “a fluke conceived out of wedlock.” Something that wasn’t supposed to be there.

And also, it’s a great story. Right? It’s one of those stories that persist. The idea that these segregationists were trying to kill something, and instead the one addition has been enormous for women. Sexual harassment law is almost entirely based on it. And now it’s opened up protections for LGBTQ people, as well.

But I think the more interesting story is the real story, which is more consistent with what we know about how politics works. Activists who cared about these issues worked on them, proposed them, lobbied for them, developed relationships, made public opinion shift, got people comfortable … they made it happen.