Sunday, May 24, 2020
by Prof. Shirley Lin, of New York University Law School
During oral argument in Harris Funeral Homes v. EEOC last October, Justice Gorsuch asked if the Court should take into account whether “massive social upheaval” would follow if it were to rule that people could not be discriminated against based on transgender status under Title VII. David Cole’s reply on behalf of respondent, Aimee Stephens, aptly noted that appellate courts have recognized such discrimination as unlawful for twenty years with no such upheaval. (No such concern was raised in the cases regarding sexual orientation and Title VII, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda.) The greater danger of upheaval is the one that would follow a decision in Harris Funeral Homes that ignored both statutory text and Court precedent that favors a conceptually broad meaning that arose from various interpretive theories — including textualism.
Our nation’s history reflects that a primary tool of dehumanization is through sex, in tandem with race, color, religion, and national origin. For more than half a century, Title VII has been authoritatively interpreted to encompass numerous manifestations of those harms, which were not “new” under the sun. In 1998, the Court was asked whether Title VII prohibited sexual harassment when the employees harassed were of the same sex as their harassers. Through Justice Scalia, the Court replied: “[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Textualism contends that statutory text is the primary source of meaning and that legislative history should never be considered. The plain meaning approach, which predates the rise of new textualism, treats statutory text as the best evidence of intent; but it also considers legislative background should they conflict. Under both textualist and plain-meaning approaches, some courts refer to dictionary definitions to assist with statutory interpretation. In his influential opinion in Fabian v. Hospital of Central Connecticut, Judge Underhill explained that even under a textualist approach to “sex” (as Title VII doesn’t further define “because of . . . sex”) dictionary definitions refer to the process of ascription based upon multiple characteristics, “properties,” and “peculiarities” of the sex trait. Sex was understood as a pluralistic trait, not an isomorphic one.
Thus, while most courts recently have ruled in favor of recognizing claims based upon transgender status or sexual orientation as sex discrimination, the older decisions did not abide by textualism nor plain meaning. Their decisions unduly reduced the meaning of “sex” to two categories instead of acknowledging the structural concepts producing the trait reflected in authoritative definitions. In other words, they reached results based upon their views of social policy. But the American public already has a different view of sex, Title VII, and the law’s remedial purpose in mind. Current polls show that 80 percent already believe it is illegal to fire someone for being transgender, gay, or lesbian, and 72 percent think it should be. For further reading, I recommend Professor Katie Eyer’s excellent explanation of contra-textualist arguments such as “original public meaning” raised in the trio of cases, which are still pending before the Supreme Court.