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The Supreme Court building is seen at sunset Jan. 24 in Washington. (AP file photo)
The Supreme Court building is seen at sunset Jan. 24 in Washington. (AP file photo)

Supreme Court can interpret ‘sex’ in many ways

By Noah Feldman
Bloomberg Opinion

Does the ban on workplace discrimination based on “sex,” as laid out in Title VII of the 1964 Civil Rights Act, include discrimination based on sexual orientation and gender identity? U.S. Supreme Court agreed Monday to take up both questions in its October 2019 term, which means we will have legal answers to these questions sometime before June 2020. It’s potentially a big moment for LGBT rights.

It’s also a watershed moment for a question the Supreme Court has been struggling with in recent years: What is the right way to interpret statutes passed by Congress?

Two schools of thought have been contending for the last several decades. One approach, associated especially with Justice Stephen Breyer, asks about the purpose of legislation. The other, linked to the late Justice Antonin Scalia and now shared by several other justices, focuses on the text of the statute.

The face-off between Breyer and Scalia might make you think that the purposive approach to statutes is always liberal and the textualist approach is always conservative. But that’s not necessarily true.

As the sexual orientation and transgender cases show, it’s possible to reach both liberal and conservative results using either theory. That’s because both theories are more malleable than you might think.

Start with purpose. The inclusion of the words “on the basis of sex” in Title VII has a quirky history long known to lawyers that’s not as widely recognized beyond that circle. The words were added to the statute by opponents of the Civil Rights Act, who didn’t want the law to pass.

Their idea was that prohibiting discrimination against women was so controversial that it would force elected officials who would otherwise have supported the antidiscrimination law into opposing it.

The gambit failed, and the Civil Rights Act, originally aimed at ending racial discrimination, came to prohibit sex discrimination as well.

If you’re interested in the purpose of the law, you could ask a very narrow question: What was the purpose of the people who drafted Title VII? Your answer would be something like, “prohibiting discrimination against women.” That wouldn’t include discrimination based on sexual orientation or gender identity.

You could also, however, ask the purpose question more broadly: Not what was the bill writers’ purpose, but rather, what is the underlying purpose of a legislative ban on sex discrimination?

You could answer the broader question by saying that the true purpose of Title VII is to prohibit any discrimination based on the category of “sex.”

From there you could argue that both sexual orientation discrimination and gender identity discrimination should be included.

The Supreme Court has long held that sex discrimination includes discrimination based on sexual stereotypes. Discrimination based on sexual orientation can be understood as a kind of sex-stereotyping, based on the view that men should be attracted to women and women to men.

Something similar can be said with respect to discrimination against transgender people or those whose gender identity resists classification. Those who discriminate on the basis of these statuses are making the stereotypical assumption that people shouldn’t transition from one gender to another, or should perform the gender role associated with their birth sex rather than a different identity.

Both conclusions depend on interpreting Title VII in light of the purpose of combating sex-stereotyping.

So purposive statutory interpretation can lead you to both sides of the Title VII question.

Perhaps surprisingly, so can textualist statutory interpretation.

Conservatives applying textualism can say that “sex” in the statute simply means “the status of being a man or a woman.” From this they could conclude that the law doesn’t extend to discrimination based on sexual orientation or gender identity.

Yet there are textualist arguments to read the statute more broadly.

If you discriminate against someone based on sexual orientation, what you’re basically saying is that you think the person should be attracted to members of the opposite sex. If, for example, the object of your discrimination is a gay man, you’re saying he should be attracted to women, not men.

If that man were actually a woman, and still attracted to men, you wouldn’t be discriminating against that person. That means you’re discriminating against this particular man for not being a woman — and hence you’re discriminating on the basis of sex. That’s a perfectly good textual interpretation of the words “on the basis of sex.”

The same structure of textualist argument can be used to cover discrimination against transgender people. If you’re discriminating, for example, against a trans man who has transitioned from female birth sex, you are saying that the person ought to identify as a woman. If the person did identify with female sex, you wouldn’t discriminate. That makes your discrimination “on the basis of sex” in a textual sense.

The upshot of this legal analysis is that it would be possible to extend Title VII protections regardless of your preferred method of statutory interpretation. In practice, the cases will therefore likely come down to political preference.

That doesn’t bode well for advocates of gay and transgender rights, but you never know. Chief Justice John Roberts may be due for a moderate turn — especially if he can take it on the basis of text.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

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