The Meaning of “Sex”

The Supreme Court has granted cert in three cases, a two to one circuit court split, to decide the question of what “sex” means under Title VII of the Civil Rights Act of 1964. This is the worst nightmare of gay and transgender advocates, who have worked hard to accomplish through lawfare what they have failed, over and over, to accomplish through legislation. Given their perhaps overly simplistic view of the Court’s partisan players, political hacks when feared, this could spell the end for their efforts to change the meaning of one critical word: Sex.

Will the Supreme Court Protect Gay and Transgender Workers?

The framing of the headline question in the New York Times editorial gives away its posture. If it’s a referendum on supporting gay and transgender workers, then it comes out one way. And if it comes out any other way, then it means the Court endorses discrimination against those workers, because surely it would rule to protect them if the Court wasn’t homophobic and transphobic.

The Justice Department sowed confusion in 2017 when it went against the stated position of the Equal Employment Opportunity Commission, the federal agency that oversees enforcement of Title VII, and argued before an appeals court that Congress never intended to extend protections to gay workers. That much may be true; the law as written makes no mention of sexual orientation or transgender status. Which could also explain a separate brief filed in October, in which the department told the Supreme Court that Title VII, as lawmakers wrote it, “does not apply to discrimination against an individual based on his or her gender identity.”

That’s not quite a fair characterization of what happened, as the EEOC, as well as the Department of Education, Office of Civil Rights, decided to flex its bureaucratic fiat to make the leap over the word sex as an immutable, binary characteristic into the realm of gender identity.

There is no serious question that when Congress enacted Title VII, the word “sex” had a clear and narrow meaning, and it didn’t mean sexual orientation or identity. But then, the point of the law was to prohibit discrimination on its basis, and if discrimination was the evil to be faced, is it any different for a person who fails to adhere to the gender stereotypes, whether in dress and behavior or choice of sex partner?

With the passage of time, however, a number of courts, including the Supreme Court, have interpreted the prohibition against sex discrimination generously. Over the past 55 years, thanks to that forward-looking reading of the law, Title VII has addressed harms that Congress never foresaw, such as forbidding sexual harassment and gender stereotyping.

But then, is it proper for the Supreme Court to interpret a law “generously,” which sounds remarkably euphemistic, as if the Times is calling on the Court to legislate where Congress has steadfastly refused to do so. But then, even the noted lefty, Nino Scalia, found room in his heart for a little Supreme finagling.

As Justice Antonin Scalia wrote in a unanimous 1998 ruling in favor of a male worker who was subject to same-sex harassment, “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.”

What’s curious about this trio of cases is that it derives not from any doubt about what Congress intended, but from a concerted decades-long effort to redefine the word “sex.”

But this passage raises an interesting problem, whether the standard by which males and females are determined can, through artful argument, be altered from clear and unambiguous to some new, shifting standard based on the adoption and alteration of words by those seeking change? Can ambiguity be manufactured by deliberately muddying up clear waters?

Out of the blue, sex morphed into gender, and gender into sex, and what was once an immutable characteristic suddenly shifted into whatever anyone chose it to be. “Who is to be master?” as Humpty Dumpty might ask.

The problem for Congress is that the only means by which it can enact a law is words. At the time a law is enacted, it says, using words, what Congress decides to enact. At the time, words have meaning, and so they parse them, argue over them, and select the words that reflect what the law should say. If these words, clear and unambiguous at the time of enactment, can be morphed into vagaries by advocates seeking to change the meaning of a law Congress enacted, how can Congress fashion a law with any certainty that it will be implemented for the purpose enacted?

There is much to be argued against reliance on “congressional intent” as the metric for limiting or expanding the reach of  a statute. First, it’s often impossible to discern, since most of the speechifying is for the purpose of marketing the law to the public, and second because it doesn’t help to figure out why members of Congress voted in favor of the law. Who can say what the otherwise-silent senator from Wyoming had in mind when “yea” emitted from his mouth?

And so, we’re left with the words in the statute, and their meaning before they became the target of redefinition. What was clear about Title VII was that the list of classifications within its reach was not intended to include every potential victim of discrimination in the workplace. It left out fat people. The disabled aren’t mentioned, but then they were covered later in the Americans with Disabilities Act. And with good reason, since disability raised a plethora of issues that required rules that differed from discrimination on the basis of race.

But neither gay nor transgender is mentioned, and Congress has had ample opportunity to remedy this omission if that’s what it intended. It refused to do so. It wasn’t a matter of neglect, but express refusal to include these classifications under Title VII (or Title IX, for that matter). So the bureaucrats did it anyway, and the circuits are split as to what to make of it, under the rubric of administrative deference.

If the Supreme Court holds that “sex” means what it meant at the time of passage, it will not mean a policy preference that discrimination against gay and transgender people is cool with them, but that legislating, and finding the proper balance, is not its job.

The Meaning of “Sex” curated from Simple Justice