April 26, 2019
Understanding the Role of Textualism and Originalism in the LGBT Title VII Cases
Professor of Law, Rutgers Law School
*Professor Eyer has written extensively on the issue of LGBT employment rights. Her most recent article on this subject, Statutory Originalism and LGBT Rights, is available here.
On Monday, April 22, the Supreme Court granted certiorari in three cases raising the question of whether anti-LGBT discrimination is “because of…sex,” and thus unlawful under Title VII. This issue—which has divided the lower courts—represents one of the most significant civil rights issues affecting LGBT Americans. Rates of employment discrimination against the LGBT community remain high, and no independent federal law proscribes sexual orientation or gender identity discrimination in employment. Thus, answering the question of whether anti-LGBT discrimination is also “because of…sex” will determine for many LGBT employees whether they are protected against even the most explicit and harmful forms of discrimination on the job.
As I have written previously (see Sex Discrimination Law and LGBT Equality), Title VII precedent strongly supports a ruling that anti-LGBT discrimination is indeed, necessarily also sex discrimination. And for the Justices on the Court who have no competing methodological or normative commitments, it seems likely that this existing Title VIII precedent will be dispositive of their votes.
But what about for those Justices who profess commitments to textualism and/or to originalism? Despite the rule of “super-strong” stare decisis in the statutory context, textualists and originalists often have a somewhat less deferential relationship to precedent—accurately deeming it to be potentially in tension with a truly textualist or originalist approach. And textualism and originalism both are often associated in the popular imagination with conservative causes, which might suggest that in this case, LGBT plaintiffs would lose if those methodologies are applied.
So, is there any hope of attracting the vote of Justices who are self-professed textualists or originalists (most of the conservative wing of the Court)?
As set out below, the answer to this question ought to be “yes.” Neither textualism nor originalism are inherently “conservative” approaches, in the sense of necessarily leading to politically conservative results. (Consider, for example, the work of the Constitutional Accountability Center). And here, textualist arguments strongly support LGBT advocates’ claims to inclusion—indeed so strongly that to hold otherwise would require resort to long discredited contra-textualist approaches. Even most originalist arguments—including those most commonly made in this context, relying on historical dictionary definitions of “sex”—also lead to a pro-LGBT inclusion result. It is only by relying on a narrow, largely discredited brand of “original expectations” originalism—one fundamentally inconsistent with core tenants of textualism—that a judge could reach an exclusionary result.
In order to see this, one need only, as textualists often admonish, “begin with the language of the statute.” Although there are other provisions of Title VII to which one could look in making arguments for LGBT inclusion, the most straightforward analysis arises from Title VII’s core disparate treatment provision, 42 U.S.C. § 2000e-2(a)(1). That provision states that, “It shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.” Thus, the key question a textualist must confront in the LGBT cases before the Court is whether anti-LGBT discrimination is “because of…sex.”
As increasing numbers of judges in the lower courts have recognized, the answer to this question is clearly “yes.” It is literally impossible to discriminate on the basis of sexual orientation or gender identity, without having it also be “because of…sex.” Consider, for example, the case of Susan the lesbian. If Susan were Mark, a cisgender man, also attracted to women, she would not have been fired. Susan’s firing is thus, quite literally, “because of such individual’s [i.e., Susan’s] …sex.”
Similarly, John, a transgender man who is fired for claiming a male identity, and having a male appearance, would not have been fired if he, like Mark, were assigned the male sex at birth. It is thus, “because of [John’s] sex” that he was terminated. As the Supreme Court has repeatedly held, prohibitions on discrimination “because of” protected class status proscribe, at a minimum, discrimination in which protected class status is a but-for cause. And in each and every case of anti-LGBT discrimination, the employee’s actual or perceived sex is a but-for cause of the adverse action.
Note that of course the outcome of this textualist analysis is no different here even if one uses the narrowest historical definition of sex—as a “biological” man or woman. As set out above, Susan’s “biological” womanhood—her status as an individual who was assigned the female sex at birth—is still a but-for cause of her termination when she is fired for being a lesbian (since she would not have been terminated if she were an individual who was assigned the male sex at birth, but who was attracted to women). So too, John’s “biological” sex—defined historically by his sex assigned at birth—is a but-for cause of his termination (since he would not have been terminated for identifying or appearing as a man, if he had been assigned the male sex at birth). Thus, on a straightforward textualist analysis, anti-LGBT discrimination is necessarily also “because of…sex.”
But what about originalism? As noted above, a textualist analysis does not change even taking an “originalist” approach to textual interpretation, and adopting a narrow, historical definition of sex. This may seem counterintuitive to those who may have heard (erroneous) claims from both the right and the left that—if originalism controls—LGBT plaintiffs must lose. Understanding the fallacy of this argument—and why the most widespread and accepted strains of originalism actually counsel in favor of LGBT inclusion, not exclusion—requires disaggregating the multiple, inconsistent, theories that are often interchangeably referred to as “originalism.”
The most accepted form of “originalism” today—and the only form that has support in modern federal statutory interpretation case law—is that which looks to the meaning of words at the time of the statute’s enactment and relies on that meaning as the starting point for textualist analysis. Though there are arguments that the relevant time of enactment should be later than 1964—for example the Civil Rights Act of 1991—most commentators have focused on Title VII’s original enactment date in 1964. Thus, an originalist argument in this vein might look to definitions of sex in 1964 and use those definitions as the starting point for their textualist analysis of whether anti-LGBT discrimination is “because of…sex.”
But as set out above, this type of originalist argument still leads to a pro-LGBT inclusion result. Even under the very narrowest historical definition of sex in 1964, discrimination against LGBT employees is still literally “because of…sex.” Susan the lesbian would still be employed, were she a “biological” man attracted to women, and John the transgender man would still be employed were he a “biological” man who presents as a man. Their termination is thus “because of” sex on a straightforward but-for account. The error of those contending otherwise is their overriding focus on the term “sex,” while utterly ignoring the phrase “because of.” But what the statute proscribes is, of course, adverse actions taken “because of…sex”—one cannot simply excise “because of” from the statutory text. Thus, statutory originalism in its accepted forms—including those embraced by the Court in recent cases like Wisconsin Central v. United States and New Prime v. Oliveira—still leads to the result that anti-LGBT discrimination is covered by Title VII.
It is only by resorting to a largely discredited form of “originalism”—one that contravenes textualism—that opponents of LGBT inclusion have been able to argue to the contrary. Specifically, judges and advocates opposed to LGBT inclusion have suggested that the “original public meaning” of Title VII must control—and that because the original public would not have imagined that LGBT people were protected by Title VII, the claims of LGBT employees today must fail. But this is a form of originalism that has been widely discredited by modern textualist statutory interpretation case law (mostly authored by no less an authority than the late Justice Scalia). As such case law makes clear, the words of broad statutes cannot be cabined by the narrow expectations of their drafters as to where they might apply. Though those making this argument have shifted their focus to the expectations of the “original public” (as opposed to Congress), they have offered no justification for why such a contra-textualist approach should be permitted simply because they are now focusing on the expectations of a different actor (the original public instead of Congress). To the extent that the Supreme Court has said that the language of the statute must control, allowing the expectations of the original public to trump that language seems facially no more legitimate.
In understanding why—as the Supreme Court has held—this “original expectations” approach is inconsistent with textualism, it is useful to unpack the variety of reasons why Congress, or the original public, might not anticipate a particular application of a textually broad statute. Contrary to the rhetoric of opponents of LGBT inclusion, it is not only changes in the meaning of a statute’s words that can explain why actors at the time of enactment might not anticipate a particular application of a textually broad statute. Those reasons might include, as the Court points out in Wisconsin Central, developments in technology that were not anticipated at the time. Or, as in the case of Oncale v. Sundowner Offshore Services, they might include a lack of imagination of foresight. Or, they might, as in the LGBT cases before the Court, include that a group was so stigmatized at the time of enactment that the original public would never have imagined that they were imbued with rights by the law (even if the literal language led to that result). Finally, they might, in some cases, arise from the fact that the meaning of the words of the statute have indeed changed. But it is only the last of these that is plausibly characterized as being consistent with textualism. To the extent exclusions based on original expectations rest on the others, it is simply an argument for allowing historical subjective beliefs to override statutory text.
This contra-textualist approach to statutory interpretation is not only inconsistent with modern textualist statutory interpretation case law, it is not even consistent with the views of most modern originalists. Though “original expectations” originalism—deeming the specific expectations of enactment-era individuals dispositive—was once the dominant originalism perspective, most modern originalists no longer give original expectations primacy. Indeed, many modern originalists make the claim that originalism and textualism are essentially the same thing, a claim that is impossible to make unless one cabins original expectations to the considerably narrower role of simply offering us evidence about what the words of the statutory (or constitutional) provision might have meant at the time. But, as detailed above, even assuming we know what sex meant at the time—and even assuming that it meant something narrow—this does not avoid the fundamental problem for opponents of LGBT inclusion: that even under the narrowest of definitions of sex, anti-LGBT discrimination is still literally “because of…sex.”
In attempts to avoid the appearance of arguing for this discredited contra-textual form of originalism, most proponents of “original public meaning” in the LGBT Title VII cases have rhetorically framed their arguments at least partially around the far more accepted approach of looking to the meaning of “sex” at the time of Title VII’s enactment. But to the extent that is their argument, it poses no genuine challenge to the arguments of advocates for LGBT-inclusion. As set out above, that form of originalism still leads to the conclusion that anti-LGBT discrimination is covered, since it is still, literally, “because of…. sex.” It is only by ignoring the plain language of the statute—and resorting to a form of subjective contra-textual originalism that has long been discredited—that opponents could successfully argue for an LGBT exclusionary result.
In conclusion, it is worth quoting in full Justice Scalia’s words in response to arguments that same-sex harassment must be excluded from Title VII’s broad proscription on discrimination “because of…sex.” In Oncale, just as in the current LGBT cases, the centerpiece of the defendant’s arguments was that same-sex sexual harassment—which they conflated with anti-gay harassment—was not a former of discrimination that Title VII was expected to proscribe. But as Justice Scalia wrote, for a unanimous Court:
“We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-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. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.”
Here, anti-LGBT discrimination “meets the statutory requirements”: it is “because of sex.” Thus, a textualist Justice (and even an originalist Justice, to the extent they adhere to a textualist approach to originalism), ought to find in favor of LGBT inclusion.
Related: Katie Eyer’s 2017 issue brief, Sex Discrimination Law and LGBT Equality
 There are also laws in some states and localities that protect LGBT employees against discrimination, and LGBT employees have sometimes also relied on other fact-specific theories to obtain relief. These potential avenues to relief would remain, regardless of what the outcome is of the cases pending before the Court.
 Title VII was amended in 1991 to include language that states that “an unlawful employment practice is established when the complaining party demonstrates that…sex.. was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). Though this language also provides an independent basis for arguing that anti-LGBT discrimination is sex discrimination, I focus my discussion herein on Title VII’s “because of…sex” provision.
Opponents of LGBT inclusion have assumed that “biological sex” is a straightforward concept, despite the fact that modern medical understandings suggest that it is not. For the purposes of my discussion herein, I use the term as it is commonly used by opponents of LGBT inclusion, and as it was most commonly understood in 1964—to refer to the sex assigned an infant at birth, typically on the basis of their external genitalia.
 Again, here, I am using the term “biological” sex here in the way that it is commonly used by proponents of historical approaches to construing Title VII, to connote sex assigned at birth on the basis of external genitalia.