//  7/10/19  //  Commentary

Title VII prohibits employment discrimination on various grounds, including "because of such individual's ... sex."  Over the past two days, I've explained how to interpret Title VII and have demonstrated that Title VII prohibits discrimination based on transgender status. (These arguments are drawn from an amicus brief that I've submitted to the Supreme Court with Larry Tribe and Alex Conlon, on behalf of Seth Waxman, Ted Olson, Walter Dellinger, Karen Dunn, and Neal Katyal). 

In this post, I'd like to address three of the most common arguments against protecting transgender people under Title VII:

(1) nobody in 1964 woud have expected this result;

(2) we shouldn't read a major, socially transformative prohibition into text that doesn't expressly announce that rule of law; and

(3) Title VII is concerned only with practices that favor men over women, or vice versa, and discrimination based on transgender status doesn't implicate that purpose. 

A straightforward application of textualist principles proves the error in these objections. 

1. Original Expectations versus Original Meaning  

Perhaps the most common objection to applying Title VII here is that “[n]o one seriously contends that, at the time of enactment, the public meaning and understanding of Title VII included . . . transgender discrimination.” Wittmer v. Phillips 66 Co., 915 F.3d 328, 334 (5th Cir. 2019) (Ho, J., concurring).

This argument is often characterized as a claim about Title VII's original public meaning. See id. But in fact, as should now be clear, it is a claim about expected applications of Title VII. See Zarda, 883 F.3d at 137 (Lohier, J., concurring) (“[T]he [dissent’s] hunt for the ‘contemporary’ ‘public’ meaning of the statute in this case seems to me little more than a roundabout search for legislative history.”).

Virtually nobody argues that the original meaning of “sex” was “transgender.” That framing of the case goes awry at the very first step. The real question in dispute is whether discrimination based on transgender status necessarily takes account of—and is partly motivated by—“sex.” To answer that question by observing that most people in 1964 thought Title VII permitted transgender discrimination is to assign controlling weight to original expectations about how Title VII would apply. And as we have already shown, that is precisely the wrong way to engage in textualism. See Scalia & Garner, Reading Law, at 101. It departs from sound interpretive methods and fails to explain several Suprem Court decisions. Indeed, notwithstanding conclusory protestations that cases like Meritor and Oncale should have “surprise[d] no one,” Wittmer, 915 F.3d at 335 n.1 (Ho, J., concurring), the truth is that those decisions would have surprised a great many people had they been issued in 1964—long before “sexual harassment” was societally recognized at all, let alone recognized as sexist and intolerable, and even longer before same-sex sexual harassment fit that conceptual framework. See, e.g., Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976); Miller v. Bank of Am., 418 F. Supp. 233, 236 (N.D. Cal. 1976).[1]

True commitment to textualism requires giving broad terms a broad reading. Sometimes that may produce results at odds with original expectations, but this is the very nature of adherence to the written word as binding law. See Union Bank v. Wolas, 502 U.S. 151, 158 (1991) (“[T]hat Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning.”).

2.  Elephants and Mouseholes 

Judge Ho of the Fifth Circuit Court of Appeals has argued that the elephants canon militates against holding that Title VII’s plain text covers discrimination based on transgender status. See Wittmer, 915 F.3d at 336 (Ho, J., concurring) (“Congress ‘does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions—it does not, one might say, hide elephants in mouseholes.’” (citation omitted)). But of all the adjectives that might reasonably describe Title VII, “ancillary” and “vague” are curious choices. See Harris, 510 U.S. at 22 (referring to Title VII’s “broad rule of workplace equality”). If there were somehow such a thing as an “elephanthole”—we’ve checked, there isn’t—that would provide a far more apt analogy.

Because Congress chose broad, prohibitory language, the proper interpretive guide is the general-terms canon, not a canon that takes its name from tiny furry rodents. See Scalia & Garner, Reading Law, at 101 (“Without some indication to the contrary, general words (like all words, general or not) are to be accorded their full and fair scope. They are not to be arbitrarily limited.”). As Judge Goldberg once explained:

Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extenso the parameter of such nefarious activities. Rather, it pursued the path of wisdom by being unconstrictive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustices of the morrow.

Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971).  

Of course, the gravamen of the mousehole objection in this context is really a claim about law and democracy. See Wittmer, 915 F.3d at 338 (Ho, J., concurring) (“Under the elephants canon, significant policy issues must be decided by the people, through their elected representatives in Congress, using clearly understood text.”). But where the best reading of a statute’s text requires that the statute apply, the Supreme Court lacks authority to vary from that result in service of a judicial policy preference for fuller and more express democratic deliberation on the precise question at issue. “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 23 (Amy Gutmann ed., 1997).

3.  Title VII's Text & Purpose

A third and final objection is that Title VII exists only to prevent employers from “favoring men over women, or vice versa.” Wittmer, 915 F.3d at 334 (Ho, J., concurring). On this view, employers can make decisions based on their employees’ sex, and impose sex-differentiated policies, so long as they do so in a manner that equally affects men and women as groups. Discriminating against transgender employees is permissible, the argument goes, because all persons who identify as transgender are treated the same.

This argument is inconsistent with the statute’s plain text, which directs attention to discrimination based on “such individual’s . . . sex” (emphasis added). “[T]he basic policy of the statute requires that [the Court] focus on fairness to individuals rather than fairness to classes.” Manhart, 435 U.S. at 709. General assertions about the statute’s purposes, which include (but are not limited to) eradicating gender inequality in the workplace, cannot overcome statutory text. See Scalia & Garner, Reading Law, 20 (“Where purpose is king, text is not.”); see also Frank H.  Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv.  J.L.  & Pub.  Pol’y 61, 67 (1994) (“[S]tatutory text and structure, as opposed to legislative history and intent (actual or imputed), supply the proper foundation for meaning.”). If an employee’s sex constitutes a motivating factor in his or her termination, that employee has faced discrimination “because of such individual’s . . . sex.” Her employer cannot escape liability by asserting that he would also discriminate against other transgender people of either sex. In that case, “the employer’s discrimination across sexes does not demonstrate that sex is irrelevant, but rather that each individual has a plausible sex-based discrimination claim.” Hively, 853 F.3d at 359 n.2 (Flaum, J., concurring).

For all these reasons, the Court need only consult the plain statutory text to conclude that discrimination based on transgender status is prohibited by Title VII.


[1] The same is true of Price Waterhouse v. Hopkins, a decision fully consistent with the plain language of Title VII but inconsistent with widespread beliefs (and practices) in the 1960s about mandating compliance with outmoded sex-role norms in the workplace.

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