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Title VII and Sexual Orientation Discrimination
Andrew Hyman

This week, the U.S. Supreme Court heard oral arguments in Bostock v. Clayton County and Harris Funeral Homes v. EEOC.   SCOTUSBlog has a summary of those arguments, and the transcript is here.  The cases revolve around Title VII of the Civil Rights Act of 1964, which bars employment discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”  The issue is whether this statutory bar on sex discrimination includes a bar on sexual orientation discrimination (Bostock), or on transgender discrimination (Harris).  For simplicity, I’ll just comment here on the former (Bostock).    

There is much common ground.  Hardly anyone thinks the word “sex” in the 1964 statute means anything other than “gender.”  Hardly anyone thinks Congress in 1964 anticipated that this section would give any protection to people in same-gender relationships.  Hardly anyone thinks discriminating against people in same-gender relationships would disfavor or disadvantage one gender or the other, or is motivated by any animus toward one gender or the other, or is an endorsement of the doctrine of male or female supremacy.  

The major disagreement is whether, according to the text of the section, it forbids employment discrimination against an individual in a same-sex relationship, given that the individual would not be in a same-sex relationship if his gender were different while the partner’s gender remained the same.  Seems to me it is unrealistic to suppose that an individual’s gender could be different while everything else remained the same, because in that event the partner would very likely insist upon exiting the relationship.  Also, using similar “but for” logic with regard to statutory categories like “national origin” would have absurd effects, because disfavoring people unlawfully in the United States depends on their national origin not being the United States.  Moreover, the discrimination against people in the present case (Bostock) is not against one gender or the other, even via implication or animus or anything else.  That doesn’t mean it’s a moral form of discrimination, but Title VII does not bar all immoral discrimination.

Congress passed the Civil Rights Act of 1964 and is free to improve it, and Judge Posner was surely mistaken when he said that we should “avoid placing the entire burden of updating old statutes on the legislative branch.”  It’s true Justice Scalia once wrote that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  Gender is not synonymous with sexuality, and being closely-related is not enough to make such words interchangeable.
MICHAEL RAMSEY ADDS:  George Will has some related thoughts in the Washington Post: It’s not the Supreme Court’s job to say whether ‘sex’ includes sexual orientation.  Also, at Volokh Conspiracy, Dale Carpenter has a great post on how Judge Posner was attacked by all sides in the oral argument:  Of loose cannons and loose canons in Title VII.
From a (statutory) originalist perspective, the interesting question to me is methodological: how much should it matter that the enacting Congress did not think that its text would cover sexual orientation discrimination?
If the original meaning of the text were clear, my answer (and I think Scalia's answer, per the quote Andrew provides above) would be: not much.  The text governs, not the intent.  When the text is not clear, though, one important way to resolve ambiguity is to look at what the enactors (and other people at the time) understood the text to mean.  That may not be conclusive, but it is strongly suggestive that, whatever ambiguities we now see over the passage of time, the text actually had a clear meaning at the time it was enacted.  For this reason, in constitutional originalism we routinely look to see what people in the founding era thought a particular text meant.  And if it seems that people in the founding era were largely in accord on the meaning, that indicates that the text isn't as ambiguous as it now seems to us.  (The scholarship on the declare war clause is a great example).
Thus when people who favor extending Title VII to sexual orientation discrimination say it shouldn't matter to a textualist what the enacting Congress thought, they are only partially right.  It shouldn't matter, if the text is clear.  But for reasons stated by Andrew, George Will, and others, I have a hard time concluding that the text is clear.