//  7/8/19  //  Commentary

Last week, along with Larry Tribe and Alexandra Conlon, I filed an amicus brief at the Supreme Court explaining why Title VII's ban on employment discrimination "because of such individual's ... sex" necessarily forbids discrimination based on transgender status and sexual orientation.  The brief was filed on behalf of Ted Olson, Seth Waxman, Neal Katyal, Walter Dellinger, and Karen Dunn.  As we explain in the very first paragraph:

These cases are simpler than they seem. The “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more . . . .” PDK Labs., Inc. v. U.S. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in judgment). Here, all that is necessary to decide the questions presented is a direct application of textualist principles to the plain language of Title VII. 

In a series of posts this week, I'll explain why that's true and present the major arguments of our brief.  This first post addresses two fundamental questions: what's the right way to interpret Title VII and what does that interpretation teach us? 

As we explain, textualist interpretive methods direct attention to the original meaning of the statutory language, though this differs from a hunt for original expectations about how that language would apply in particular cases.  With that crucial distinction in sight, we then walk through the statutory terms—"because of," "such individual's," and "sex"—and explain how they fit together.  At the very end of this discussion, we emphasize that the meaning of "sex" was unsettled in the 1960s, but that it's unnecessary to resolve that dispute while deciding whether Title VII protects LGBT people.

In posts over the next few days, I'll unpack that claim.


As Justice Kagan has observed, “we’re all textualists now.” See Elena Kagan, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes (Nov. 17, 2015); see also Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118 (2016) (“Statutory interpretation has improved dramatically over the last generation. . . . The text of the law is the law.”). The Court thus “begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004).

Here, the parties sharply dispute the application of textualist methods to Title VII’s ban on discrimination “because of such individual’s . . . sex.” Much of that dispute concerns the relevance of beliefs held by Americans in the 1960s about how Title VII might apply in cases like these. We first describe the interpretive principles which control that question; we then apply those principles to Title VII.

A.  The Relevance of Original Statutory Meaning and the Irrelevance of Expected Applications

The Court’s analysis of statutory text is disciplined by the “fundamental canon” that “words will be interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Perrin v. United States, 444 U.S. 37, 42 (1979) (citations omitted). This ensures that “the people may rely on the original meaning of the written law.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018); see also New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019); Sandifer v. U.S. Steel Corp., 571 U.S 220, 227 (2014); Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009). To ascertain ordinary meaning, the Court considers a myriad of historical sources, including contemporary dictionaries, see, e.g., Wis. Cent., 138 S. Ct. at 2070; Sandifer, 571 U.S. at 227-28, statutes and regulations, see, e.g., New Prime, 139 S. Ct. at 543; Wis. Cent., 138 S. Ct. at 2070-71, and judicial decisions, see, e.g., New Prime, 139 S. Ct. at 540, Sandifer, 571 U.S. at 229-30.

Critically, as the Court has made clear time and again, historical study may clarify the “statute’s meaning” but it does not (and cannot) preclude “new applications” of a statute that “arise in light of changes in the world.” Wis. Cent., 138 S. Ct. at 2074. A statute’s meaning is distinct from how people may have expected the statute would apply when it was enacted. “We are governed by what our lawmakers said—by the principles they laid down—not by any information we might have about how they themselves would have interpreted those principles or applied them in concrete cases.” Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s “Moral Reading” of the Constitution, 65 Fordham L.  Rev.  1269, 1284 (1997).

That precept most often comes into play when the Court interprets expansive statutes. As Justice Scalia and Bryan Garner have explained, “some think that when courts confront generally worded provisions, they should infer exceptions for situations that the drafters never contemplated and did not intend their general language to resolve.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012). But that is wrong: “Traditional principles of interpretation reject this distinction because the presumed point of using general words is to produce general coverage—not to leave room for courts to recognize ad hoc exceptions.” Id.

Not coincidentally, the most famous articulation of this point occurred in another case about Title VII’s ban on discrimination “because of such individual’s . . . sex.” There, the Court held that Title VII forbids “male-on-male sexual harassment in the workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). Admittedly, there may not have been “a single reference in all the committee reports and congressional debates” on Title VII that addressed “excessive male-on-male sexual harassment.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 612 n.6 (2004) (Thomas, J., dissenting). But this was irrelevant. What matters is the text, not the outcomes expected by those who enacted it: “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79.

This canon of interpretation is not unique to Title VII. Consider, for example, Pennsylvania Department of Corrections v. Yeskey, which held that Title II of the Americans With Disabilities Act (ADA) covers inmates in state prisons. See 524 U.S. 206 (1998). This conclusion would almost certainly have dismayed the Congress that enacted the ADA. See id. at 212-13. Yet the Court waved such concerns aside: “As we have said before, the fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” Id. (citation omitted).

Oncale and Yeskey thus anchor a line of authority that distinguishes between a statute’s original meaning (which matters a great deal) and a statute’s expected applications (which matter not at all). The Court looks to history for insight into what statutory words mean, but the sources it finds do not get a vote in how those words are applied. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 345 (7th Cir. 2017) (en banc) (“[T]he fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”).

B.  Interpreting Title VII’s Ban on Discrimination “Because Of Such Individual’s . . . Sex”

Title VII makes it illegal “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).  Notwithstanding the undoubted breadth of this language, it is unlikely that many Americans in 1964 expected it to ban employment discrimination against gay men, lesbians, bisexuals, or transgender people.

But for the reasons just given, a determination of Title VII’s meaning does not depend on what outcome most people in 1964 expected. The Court instead asks why they would have expected any particular outcome. Were the words “discriminate . . . because of such individual’s . . .  sex” understood in a manner that necessarily precluded such applications? Or did this expectation instead reflect a failure to appreciate the full implications of the broad language that Congress enacted into law? Perhaps it also rested on a widespread belief that gay men, lesbians, bisexuals, and transgender people were “psychopaths, criminals, and enemies of the people”—outcasts who, to many at the time, obviously could be fired without restriction. William N. Eskridge Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 336 (2017).[1]

The latter possibility is hardly outlandish. The term “sexual harassment” was not defined in any dictionary in the 1960s. No legal authorities forbade it and few scholars had studied it. Many Americans would surely have been amazed to learn that Congress had just outlawed “sexual harassment,” which in the eyes of many was an entirely normal if not specifically named employment practice. And yet, several decades later, the Court held that Title VII did exactly that—not only as to different-sex harassment, but also as to same-sex harassment, which few judges had ever treated as unlawful. See Oncale, 523 U.S. at 80; Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); see also Zarda v. Altitude Express, Inc., 883 F.3d 100, 1154 (2d. Cir. 2018) (“[B]ecause Congress could not anticipate the full spectrum of employment discrimination that would be directed at the protected categories, it falls to courts to give effect to the broad language that Congress used.”). Experience with Title VII’s text, and with the many ways in which employers can account for sex, led the Court to a once-unthinkable outcome. See Meritor, 477 U.S. at 67 (“[A] requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.” (citation omitted)).

The Court must therefore study Title VII’s plain text to answer the question at bar, accounting for historical evidence of original meaning and its own precedent.

1.  "Because of"

The first key phrase is “because of.” As the Court has explained, “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013) (citing Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009); 1 Webster’s Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966)). Under the original meaning of Title VII, discrimination “because of” a protected characteristic refers to actions that would not have occurred “but for” that characteristic. See Gross, 557 U.S. at 176-77. And in 1991, Congress amended Title VII to ensure that it also reaches cases where a protected characteristic is so much as a “motivating factor.” See 42 U.S.C. § 2000e-2(m).

Read this way, the phrase “because of” plays a crucial role in ensuring that “sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (plurality opinion). The onus is not on the employee to prove that he or she was fired solely (or even primarily) for prohibited reasons. Rather, “if an employer allows gender [or other enumerated characteristics] to affect its decisionmaking process, then it must carry the burden of justifying its ultimate decision.” Id. at 248. Title VII’s plain text thus requires a broad view of what it means for a protected characteristic to influence an employment decision. When such a characteristic is part of the employer’s reasoning, even if only a component part, Title VII applies.

2.  "Such Individual's

Next up is “such individual’s.” This phrase is often taken for granted, but it reflects a fundamental aspect of the statutory scheme: Title VII protects individuals, not groups. Title VII is not “class-based legislation, aimed only at employer policies or workplace conditions that disfavor women and favor men, or disfavor blacks and favor whites, or disfavor Catholics and favor Protestants.” Eskridge, Title VII’s Statutory History, at 342-43. Instead, “Title VII operates as classification-based legislation, aimed at employer policies or workplace conditions that disadvantage any employee because of her or his race, sex, or religion . . . .” Id. at 343.

The Court has long recognized this dimension of Title VII’s protections. As it explained in City of Los Angeles v. Manhart, “[t]he statute’s focus on the individual is unambiguous,” requiring “that we focus on fairness to individuals rather than fairness to classes.” 435 U.S. 702, 708-09 (1978).Employment practices which do not discriminate against all members of a group, or even against most of them, can still violate Title VII if they take prohibited characteristics into account. See id.

Title VII thus forbids excluding women with young children but hiring similarly-situated men, even though that policy does not affect most female employees. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam); see also Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 211 (1991) (holding that Title VII forbids employees from treating women who are capable of bearing children differently from other similarly-situated women). By the same token, an employer cannot fire women for refusing sexual advances and then defeat liability on the ground that most women were left alone (or were subsequently replaced with other women, preserving the overall gender balance of the workplace). Cf. Meritor, 477 U.S. at 66. Title VII expressly safeguards each employee individually from being treated less favorably than other employees because of his or her sex. See, e.g., Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“Congress never intended to give an employer license to discriminate against some employees on the basis of . . . sex merely because [it] favorably treats other members of the employees’ group.”).[2]

3.  "Sex"

That leads to the most hotly-disputed term in this case: “sex.” Several judges have concluded that “sex” had a clear meaning in 1964: biologically male or female. See, e.g., Hively, 853 F.3d at 362 (Sykes, J., dissenting); Wittmer v. Phillips 66 Co., 915 F.3d 328, 334 (5th Cir. 2019) (Ho, J., concurring). On this view, “sex” refers exclusively to the division of humanity into two groups—male and female—with every person unalterably assigned to a group at birth based on perceived anatomical or genetic characteristics. Other judges, in contrast, have concluded that “sex” refers to more than a set of biological traits fixed at birth. See, e.g., Zarda, 883 F.3d at 114. These judges note that a person’s sex may not actually be that which was assigned at birth. See, e.g., Hively, 853 F.3d at 347. They add that “sex” cannot be reduced to a set of biological structures lacking any social meaning, and that sex is inextricably entangled with the concept of gender and a web of associated social sex norms. See Schroer v. Billington, 424 F. Supp. 2d 203, 212-13 (D.D.C. 2006) (emphasizing the “real variations in how the different components of biological sexuality—chromosomal, gonadal, hormonal, and neurological—interact with each other, and in turn, with social, psychological, and legal conceptions of gender”).  

The best available scholarship does not conclusively demonstrate that either interpretation constituted the exclusive, ordinary meaning of “sex” in 1964. Historians have shown that the meaning of “sex” was contested rather than settled when Congress enacted Title VII. See generally Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012). Contemporary dictionaries included the narrower definition of sex—but also included equally plausible and widespread definitions that referred to gender, social norms, and sexuality. See Eskridge, Title VII’s Statutory History, at 338 & n.62 (quoting several dictionaries).[3]

This Court’s precedent interpreting “sex” plainly does not require the narrow definition. For starters, the Court has long used “sex” and “gender” interchangeably. See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 66 (2006); Harris, 510 U.S. at 22. In doing so, moreover, the Court has never suggested that “sex” must be understood as the sex assigned by outsiders at birth, as opposed to a person’s sex as that person understands and lives it. Nor has the Court limited Title VII liability to discrimination based purely on sex assigned at birth. It has held that Title VII reaches discrimination based on physical characteristics correlated with sex, see Manhart, 435 U.S. at 712 (life expectancy), as well as societal norms about sex—regardless of whether those norms have any actual or perceived connection to biology, see Price Waterhouse, 490 U.S. at 250-51. These decisions stand in tension with the narrowest view of “sex” as confined to sex assigned at birth. See E.E.O.C v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 577-78 (6th Cir. 2018).

Fortunately, as we explain below, the Court can (and therefore should) decide these cases without definitively resolving the meaning of “sex” in Title VII. Under any interpretation of “sex,” discriminating based on a person’s transgender status (or transition), or a person’s sexual orientation, necessarily qualifies as discrimination “because of such individual’s . . . sex.”[4] 

Tomorrow, I'll address the first of two textualist reasons why Title VII must be interpreted as prohibiting discrimination based on transgender status ... 


[1]See also Katie R. Eyer, Statutory Originalism and LGBT Rights, 54 Wake Forest L. Rev. 63, 75-76 (2019).

[2] This rule qualifies, and provides context for, statements that might be taken to suggest that Title VII is concerned only with general parity between sexes. See, e.g., Oncale, 523 U.S. at 80 (“The critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” (citation omitted)).

[3]To the extent it is relevant, Title VII’s legislative record does not clarify the meaning of “sex.” Meritor, 477 U.S. at 64.

[4] Title VII permits employers to take sex into account when sex is a “bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise,” 42 U.S.C. § 2000e-2(e), but that narrow exception is irrelevant here.

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Gerstein Harrow LLP

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