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10/11/2020

William Eskridge et al.: Dynamic Words, Novel Applications, and Original Public Meaning
Michael Ramsey

William N. Eskridge (Yale Law School), Brian G. Slocum (University of the Pacific - McGeorge School of Law) and Stefan Gries (UC Santa Barbara - Department of Linguistics) have posted The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning (Michigan Law Review, Vol. 119, forthcoming) (80 pages) on SSRN.  Here is the abstract:

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, Georgia, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sex and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the Court failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that long-standing statutes are inherently dynamic because they inevitably evolve ‘beyond’ the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to naturally evolve over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism).

Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). Linguistic dynamism may implicate originalism but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all of the opinions in Bostock assumed, and gender and sexual orientation were essentially non-words. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, ‘gays and lesbians’ and transgender people became new social groups that did not exist in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance.