Volume 95, Number 2

May 2020

Taking Congruence and Proportionality Seriously

Jeremy W. Brinster

Advocates are hoping that employment discrimination based on sexual orientation and gender identity will soon be outlawed under Title VII. To this end, the Supreme Court is currently considering whether Title VII already prohibits those forms of discrimination, and legislators have advanced the Equality Act, a new bill that would explicitly protect lesbian, gay, bisexual, and transgender employees. These debates, however, typically overlook a critical question: Does Congress actually have the authority to hold state governments accountable for discriminating against LGBT workers? This Note argues that Congress does. While Congress exercises its power to enforce the Fourteenth Amendment under the constraints of the Court’s “congruence and proportionality” standard, none of the limitations set by the Court foreclose the Equality Act’s provisions imposing liability on state employers. If the Court takes congruence and proportionality seriously, those provisions should stand. This Note thus challenges the conventional wisdom that LGBT individuals are beyond Congress’s power to protect merely because the Court does not formally review anti-LGBT discrimination under heightened scrutiny. It seeks to account for the Court’s clear concern with state action rooted in animus, which indicates that classifications targeting LGBT individuals are subject to careful judicial review. Moreover, it recasts the Court’s precedents on congressional enforcement, emphasizing that the legislative record and statutory scope, rather than the applicable standard of review, determine the validity of the statute in question. Under these clarified standards, the Equality Act emerges as appropriate enforcement legislation.