It’s Not Bad Textualism, It’s Much Worse: It’s Bad EnglishDavid E. Weisberg

This note concerns the Sexual-Orientation-Gender-Identity (SOGI) Title VII cases recently argued before the Supreme Court, and specifically Prof. Richard Primus’ article in Politico: "The Supreme Court Case Testing the Limits of Gorsuch’s Textualism," which has also been commented on by Prof. Ramsey here.

Title VII prohibits employment discrimination “because of [an] individual’s … sex”.  Prof. Primus asserts: “The logic is pretty simple. If a male employee is fired because he has sexual relationships with men, but female employees in the same workplace can have sexual relationships with men without getting fired, then the male employee was fired ‘because of [his] sex,’ inasmuch as he would not have been fired had his sex been different.  The same is true of a woman assigned female at birth who is fired because she lives as a man.”  He goes on to say that the text of Title VII, “read literally, covers LGBTQ scenarios.”

Prof. Primus’ “pretty simple” logic is grievously flawed.  His fundamental mistake is to conflate (a) the truthful, correct answer to a question, and (b) statements that can serve to clarify that answer.  He believes that any statement that clarifies an answer is itself “literally” an answer.  Not so.

A man is asked: “Why didn’t you get the job?”  He answers: “I’m a man, and they rejected me because of my sex.”  Any competent English speaker would understand that answer to mean that the employer doesn’t hire men (or doesn’t hire men for the job the applicant sought).  If the applicant was rejected for homosexual behavior, then his answer was false.  If he were under oath and his answer related to some material factual issue, he would have perjured himself.

Suppose the applicant answers: “I was rejected because I’ve engaged in homosexual activity.”  His interlocutor might ask: “What is homosexual activity?”  An explanation of what constitutes homosexual activity would certainly refer to the sex of the partners, but that does not imply that a reference to the applicant’s sex is a correct answer to the question: “Why didn’t you get the job?”  The applicant is a man; he couldn’t engage in homosexual behavior unless he had sexual relations with another man.  Nevertheless, if he was rejected because of homosexual activity, he cannot correctly or truthfully say he was rejected because of his sex.

The same is true with regard to Prof. Primus’ second example.  A female applicant says, “I’m a woman, and they rejected me because of my sex.”  Any competent English speaker would understand this to mean that the employer refuses to hire women (or refuses to hire women for the job the applicant sought).  Therefore, if the applicant was rejected because she lives as a man although her birth certificate assigns her as female, then the answer she gave was not “literally” true or true in any other sense; it was false. 

The female applicant was rejected because she lives as a man.  If someone asks, “What does it mean for a woman to live as a man?”, the answer certainly would refer to the woman’s sex.  But that does not mean that a simple reference to her sex is a correct, truthful answer to the question: “Why didn’t you get the job?”

The illogic of Prof. Primus’ position actually generates a reductio ad absurdum.  If it were correct to say the male employee was fired “because of his sex,” then it would be equally correct to say he was fired “because of his partner’s sex.”  That is, if his partner’s sex had been female rather than male, the employee would not have been fired.  No one embraces the self-contradictory position that, if an employee is fired because of his partner’s sex, that means the employee was fired because of his own sex.  Therefore, in firing the male employee, the employer simultaneously violates Title VII (inasmuch as the employee was fired “because of his sex”) and does not violate Title VII (inasmuch as the employee was fired “because of his partner’s sex”). 

Similarly, if a woman is fired because she lives as a man, it would be just as correct to say that she was fired “because she lives as a man” as it would be to say that she was fired “because she is a woman”.  But Title VII doesn’t prohibit firing an employee who has a particular hair style, or wears certain clothes, or insists on being referred to with a particular prefix.  So, in firing the female employee, the employer simultaneously violates Title VII (inasmuch as she was fired “because of her sex”) and does not violate Title VII (inasmuch as she was fired “because she lives as a man”).  These results—where an employer simultaneously violates and does not violate Title VII—are absurd.   

If an employee is fired because of homosexual conduct, then he or she was fired because of his or her behavior, not because of his or her sex.  If an employee is fired because he or she lives as another sex, then he or she was fired because of his or her behavior, not because of his or her sex.  It should not come as news to anyone that that’s how the word ‘because’ works.