Last week, the Supreme Court agreed to review three lower court decisions posing the important question whether Title VII of the Civil Rights Act of 1964—which makes it unlawful for an employer or prospective employer “to discriminate against any individual . . . because of such individual’s . . . sex”—thereby forbids discrimination on the basis of sexual orientation and gender identity. There is little doubt that few if any of the members of the Congress that originally enacted the statutory language would have thought it had that effect.
However, as the late Justice Antonin Scalia wrote for the Court in a 1998 Title VII case that applied the statute’s sex discrimination prohibition to other circumstances that its drafters likely did not envision, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” And there are straightforward reasons to think that discrimination based on sexual orientation or gender identity is sex discrimination.
The pending Title VII cases thus pose a test for the Court’s conservative majority. At one point or another and to varying degrees, all of the Court’s conservatives have embraced some version of the so-called textualist approach to statutory interpretation epitomized by Justice Scalia’s observation in the 1998 case, Oncale v. Sundowner Offshore Services, Inc. If they keep faith with their textualist commitment, they will rule in favor of the plaintiffs.
Arguments for the Plaintiffs Based on Text and Precedent
The argument for the plaintiffs in the Title VII cases is very straightforward. As Chief Judge Robert Katzmann of the US Court of Appeals for the Second Circuit wrote for an en banc majority in one of the cases now before the Supreme Court:
Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.
Likewise, discrimination based on gender identity inevitably takes account of an individual’s sex. An employer who refuses to hire a person who had male genitalia at birth on the ground that the person identifies as a woman (or vice-versa) has made a judgment about how that person should act, dress, and look based on what the employer understands to be that person’s sex.
The conclusion that sex discrimination encompasses discrimination based on sexual orientation and gender identity does not rely solely on definitions. It also rests on Supreme Court precedents construing Title VII to forbid sex-role stereotyping. Yet sex-role stereotyping is at the heart of discrimination based on sexual orientation and gender identity. An employer who makes an adverse employment decision based on the fact that a current or prospective employee is gay, lesbian, or bisexual makes a judgment based on a stereotypical view of how one’s sex ought to affect romantic desire. Likewise, discrimination against individuals because they are trans epitomizes sex-stereotyping.
Arguments for the Defendants Based on Intent and Text
If, contrary to Justice Scalia’s maxim in the Oncale case, statutory interpretation were a search for what the legislators who enacted a law would have thought about each question, the plaintiffs would lose. But Oncale was unanimous. Virtually no one thinks that legislators’ unexpressed intentions and expectations prevail over statutory text.
So why aren’t these cases slam-dunks for the plaintiffs? The short answer is that they should be, but we can examine two sorts of arguments for the defendants that purport to rely on the text. Both can be found in the dissent by Judge Gerard Lynch in the Second Circuit case.
Judge Lynch acknowledges that if “discriminate” means “distinguish” then yes, sex discrimination encompasses discrimination based on sexual orientation and gender identity. However, he goes on to say that, as used in Title VII, discrimination means more than simply drawing distinctions; it means drawing invidious distinctions. And, he correctly notes, Title VII case law does not forbid all distinctions between men and women.
Yet it is hardly clear that Judge Lynch’s intervention undercuts the plaintiffs’ argument. After all, they argue (and as a normative matter Judge Lynch heartily agrees) that disfavoring people for employment opportunities because they are gay, lesbian, bi, or trans does discriminate invidiously. So his emphasis of the narrower sense of the meaning of “discriminate” does not appear to do any work.
That brings us to Judge Lynch’s second textual argument. He acknowledges that a law can have concrete consequences that its drafters did not anticipate or intend. However, he thinks that those consequences are limited. He says that
a law aimed at producing gender equality in the workplace may require or prohibit employment practices that the legislators who voted for it did not yet understand as obstacles to gender equality. Nevertheless, it remains a law aimed at gender inequality, and not at other forms of discrimination that were understood at the time, and continue to be understood, as a different kind of prejudice, shared not only by some of those who opposed the rights of women and African–Americans, but also by some who believed in equal rights for women and people of color.
With due respect to Judge Lynch (who is a former colleague, a friend, and a jurist I much admire), there is no principled basis for concluding that the correct implementation of a law’s purpose can go beyond the drafters’ specific intentions but that the correct understanding of the purpose itself cannot go beyond those intentions. The drafters of Title VII did not recognize workplace sexual harassment as a form of sex-based discrimination, but modern case law does. Likewise, courts should be able to say that although the drafters of Title VII did not recognize anti-LGBT bias as a form of sex-based bias, we now do. Judge Lynch’s distinction is arbitrary and certainly not supported by Title VII’s text.
Judicial Role
The defendants in these cases and the Trump Justice Department also make an institutional argument against recognizing LGBT-status discrimination as sex discrimination. They contend that it should be left to Congress, not the courts, to expand the scope of the nation’s antidiscrimination statutes. This contention echoes an argument made by Chief Justice Roberts in his dissent from the Court’s 2015 ruling finding a constitutional right to same-sex marriage. Admittedly, the institutional argument has a superficial appeal. Nonetheless, it should fail for three reasons.
First, to say that Congress rather than the courts should make any changes to Title VII begs the question. If discrimination based on sex includes discrimination based on LGBT status, then Title VII does not need to be changed by Congress or the courts. If the defendants and their allies have some independent reason for concluding that Title VII does not already cover LGBT discrimination, they should make that argument. But in the absence of some such further argument, the institutional argument looks very much like a way of reasserting the already-discredited contention that Title VII does not cover LGBT discrimination because the members of Congress who enacted it in 1964 did not expect such coverage.
Second, insofar as the leave-it-to-Congress argument rests on the expectations of Congress in 1964, it adds insult to injury. The logic of sex-includes-LGBT-status is so obvious to us now that even otherwise conservative judges have found it irresistible. That fact raises the question why we are so sure that Congress would not have reached the same conclusion in 1964. The answer to that further question is obvious: In 1964, even a great many people we regard as fair and decent subscribed to a widely shared prejudice concerning (what we now call) LGBT status. Where past lawmakers enacted their prejudices into law, we sometimes have to accept the result, even if we do not like it. But we have no obligation to give effect to unexpressed and (from our vantage) unjustified prejudices.
Third, even if one thinks Chief Justice Roberts had a fair point in criticizing the Court for constitutionalizing the right to same-sex marriage, that point does not extend to Title VII. In 2015, the Chief Justice objected that in deciding the marriage equality “question under the Constitution, the Court removes it from the realm of democratic decision.” A ruling that Title VII covers LGBT discrimination would not have that impact. Congress could, if it so chose, enact legislation curtailing Title VII. The Court would simply be evaluating the output of the legislative process, not ending it.
The objections to treating LGBT discrimination as sex discrimination under Title VI thus do not withstand critical scrutiny. We are left only with the clear and straightforward arguments for the plaintiffs based on statutory text and precedents regarding sex stereotyping. Thus, the conservative justices’ espoused textualist principles should point decisively in favor of the plaintiffs. The only real question is whether those justices will have the courage of their stated convictions.