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Originally, bans on sex discrimination were taken to by and large protect women.

What’s happened in more recent years [through the EEOC’s decisions for federal employees, which also apply to its work in the private sector] is that we, from my perspective, finally began to engage in legal correction.

We removed that artificial exclusion from sex discrimination law.

What the EEOC did, as many courts did, is carve out essentially an arbitrary exclusion from sex discrimination law and simply announce by fiat that these cases of sexual orientation and gender identity were not cases of sex discrimination.

That continued to be the case for quite some time, even though the Supreme Court started interpreting sex discrimination in a way that could have easily protected transgender and LGB people.

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Nowadays, the EEOC argues that LGBTQ people are protected by bans on sex discrimination, because discrimination against LGBTQ people is, fundamentally, rooted in expectations of how people of certain sexes should act — whether it’s whom they should love or what their gender identity should be based on the sex assigned to them at birth.

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