Bench Memos

Law & the Courts

Misframing the Title VII SOGI Debate

I discussed in these posts the pseudo-textualist arguments being made in support of the claim that Title VII’s ban on employment practices that “discriminate … because of … sex” prohibits discrimination on the basis of sexual orientation or gender identity. In support of those argument, the pseudo-textualists falsely claim that the Department of Justice and other defenders of the longstanding understanding of Title VII are resting their position on the unenacted intentions of members of Congress in 1964 rather than on the original public meaning of Title VII. In particular, they repeatedly invoke, as though it helps them, the statement in Justice Scalia’s unanimous opinion in Oncale v. Sundowner Offshore Services (1998) that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

But DOJ and its allies embrace this passage from Oncale. Far from relying on the “principal concerns” of members of Congress in 1964, they explicitly argue that the “ordinary public meaning of ‘sex’ in 1964 is dispositive.” (DOJ Brief at 19.) What’s more, they show that Oncale’s reading of Title VII fully supports their position. In a passage that the pseudo-textualists prefer to ignore, Justice Scalia’s unanimous opinion in Oncale quoted with approval this statement from an earlier concurring opinion by Justice Ginsburg:

“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”

Discrimination on the basis of sexual orientation or gender identity does not expose “members of one sex … to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale’s reading of Title VII thus defeats the brief’s claim.

I’m sorry to see that today’s Washington Post article on the Title VII cases falls hook, line, and sinker for the pseudo-textualist misframing:

No one argues that Congress in 1964 intended to protect LGBTQ individuals; homosexual conduct was illegal in the vast majority of the country. The solicitor general said that basic fact should decide the cases.

“In 1964, the ordinary public meaning of ‘sex’ was biological sex,” [solicitor general Noel] Francisco wrote. Congress is free to make clear that Title VII includes sexual orientation and transgender status, Francisco said, but it has repeatedly turned down attempts to change the law to do so.

The plaintiffs and their lawyers say that the statute’s text, not what Congress intended, should hold. That is something of a switch — usually it is conservatives making such a textualist argument — and the lawyers point to an unlikely ally: the late justice Antonin Scalia.

In a 1998 ruling in a case called Oncale v. Sundowner Offshore Services, Scalia wrote for the court that male-on-male sexual harassment was covered by Title VII even though it is not mentioned in the statute or envisioned by Congress.

“It is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” Scalia wrote, adding that same-sex harassment need not be “the principal evil Congress was concerned with.”

“We’re the textualists here,” said Ria Tabacco Mar, an attorney for the ACLU, which is representing the Zarda estate. “We’re the ones pointing to the words of the statute.”

Note that in the first passages I’ve italicized the article accurately quotes DOJ’s brief as making an argument based on “ordinary public meaning” but somehow mischaracterizes that argument as resting on what “Congress in 1964 intended” but didn’t express in text. Remarkable. (By the way, I don’t mean to single out the Post for criticism. It wouldn’t surprise me if this media misframing is widespread; I simply ran across it in the Post.)

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