Judge Ho’s Excellent Opinion on Title VII, Sexual Orientation, and Gender Identity—Part 1

In a concurring opinion yesterday in Wittmer v. Phillips 66 Co. (see pp. 9-22), Fifth Circuit judge James C. Ho provided a clear, crisp, and compelling explanation of why Title VII’s ban on discrimination on the basis of “sex” should not be read to ban discrimination on the basis of sexual orientation or gender identity. In this post, I will present Judge Ho’s opinion. In a second post, I will address the question when it is proper for a judge (or justice) to opine on a matter that is not necessary to the decision of a case.

Judge Ho begins by presenting the “two competing schools of thought” on what Title VII’s ban on “discriminat[ion] because of sex” means. Under the anti-favoritism theory, Title VII “prohibits employers from favoring men over women, or vice versa.” Under the blindness theory, employers must be “entirely blind to a person’s sex.” Separate bathrooms by sex are permitted under the anti-favoritism theory but not under the blindness theory.

Here are substantial excerpts (citations omitted; paragraph breaks altered) from the remainder of Ho’s opinion:

Although judges in other circuits are divided over their interpretation of Title VII, they are united as to the original public meaning of Title VII. No one seriously contends that, at the time of enactment, the public meaning and understanding of Title VII included sexual orientation or transgender discrimination. To the contrary, there is a judicial consensus that the public meaning of Title VII in 1964 did not include sexual orientation or transgender discrimination.

This consensus about the original understanding of Title VII is further bolstered by four decades of case law. During that time, every federal circuit to address the issue—including the First through Eleventh Circuits—rejected attempts to construe Title VII to prohibit discrimination on the basis of either sexual orientation or transgender status….

The traditional understanding of Title VII is further bolstered by other established principles of statutory interpretation. As the Supreme Court has repeatedly observed, Congress “does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” The Court typically invokes the “elephants” canon when it is asked to construe an ambiguous statute to reach a matter of great policy consequence….

The elephants canon easily applies here. No one could seriously dispute the importance of the issues presented in this case, as reflected by the amicus and en banc attention these issues have attracted in other circuits. What’s more, this case is about more than sexual orientation or transgender discrimination. If we accept the blindness theory of Title VII, what else are employers prohibited from doing? As I noted earlier, employers would also be forbidden from maintaining separate bathrooms and changing rooms for men and women—even though the purpose of separate bathrooms and changing rooms is not favoritism toward either sex, but respect for the privacy of employees and customers of both sexes….

So this case does not simply concern sexual orientation and transgender discrimination. It affects every American who uses the restroom at any restaurant, buys clothes at any department store, or exercises at any gym. What’s more, because federal statutes governing educational institutions employ language indistinguishable from Title VII, this debate also affects virtually every school, college, dormitory, athletic activity, and locker room in America….

The traditional interpretation of Title VII is also the only reading that comports with common usage. When construing statutes, courts presume that lawmakers use words in light of their natural and ordinary meaning, rather than resort to more cryptic formulations. If Congress had meant to prohibit sexual orientation or transgender discrimination, surely the most straightforward way to do so would have been to say so—to add “sexual orientation” or “transgender status” or “gender identity” to the list of classifications protected under Title VII. It would defy common sense to imagine that lawmakers labored to assemble a majority coalition to eradicate sexual orientation and transgender discrimination from the workplace—only to select the most oblique formulation they could think of (“because of sex”) and then hope for the best that courts would understand what they meant.

Opponents of the traditional approach to Title VII nevertheless contend that their position is compelled by the Supreme Court’s decision in Price Waterhouse v. Hopkins (1989)…. But here’s the problem with this theory: Price Waterhouse doesn’t make sex stereotyping per se unlawful under Title VII. To the contrary, under Price Waterhouse, sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other.