Sex and the Text: What Could Carry the Day in the Supreme Court's Title VII Cases
A Georgetown Law professor says that she's found evidence that shows transgender discrimination was included in a reasonable understanding of sex discrimination when Title VII was enacted.
December 05, 2019 at 11:27 AM
6 minute read
There are signs of new activity in the cases pending before the U.S. Supreme Court that ask the question of whether the prohibition of "discrimination because of sex" in Title VII of the 1964 Civil Rights Act covers situations in which a transgender woman or openly gay man is fired.
Media outlets, including the Wall Street Journal, the American Prospect and National Review, are running pieces that not only pick up the arguments where they left off when the high court heard the case in October but also suggest that at least one conservative justice may be on the cusp of ruling for the plaintiffs. In response, conservative advocates seem to be taking to the internet to try to persuade justices not to slide into what amounts to political incorrectness on the right.
The reason? Textualism, the philosophy promoted so strongly by the late Justice Antonin Scalia that Justice Elena Kagan once remarked that "we're all textualists now." The problem with it, from a conservative outcome-driven perspective, is that textualism offers Kagan a path toward persuading Chief Justice John Roberts and Justice Neil Gorsuch that an honest reading of Title VII supports the plaintiffs' argument that it's discriminatory if the basis for someone getting fired is deviation from the expectations associated with his or her sex.
For example, in one of the pending cases, Aimee Stephens was fired from her job of six years when her employer learned that the person he knew as male would transition to what Stephens experienced as her true gender. The legal question presented is whether her dismissal was because of her sex. She was the same person, holding the same job. One thing changed: her sex.
The defendant and the U.S. Department of Justice (which switched its position after the Trump administration took office) argue that "sex" was understood in 1964 to include only policies that harmed women more than men (or vice versa) of the sort that then excluded women from many jobs. Nonetheless, even they are forced to concede that Title VII must extend to situations that logically fall within its scope—regardless of the cultural norms in 1964. An example is sexual harassment, which is not mentioned in Title VII but which, 20 years later, the high court found was covered. And in 1964, sexual harassment, the term had not yet been invented, was indistinguishable from a day at the office.
In 1998, Scalia wrote an opinion interpreting Title VII to prohibit harassment of men by other men. The year before that ruling, the justice published a book in which he argued that the meaning of a law should not be determined by what a legislature meant it to cover but by the text of the law. "A text should not be construed strictly [or] leniently," he wrote. "It should be construed to contain all that it fairly means."
Since the Supreme Court heard arguments in the current cases, I have come across additional evidence demonstrating that, while transgender plaintiffs may have been less common in the early 1960s than today, their cases nonetheless fall within the scope of what a reasonable understanding of sex discrimination was when Title VII was enacted.
Working at the John F. Kennedy Library archives in Boston, researching early second wave feminist legal arguments, I read the transcript of an April 1962 meeting of the President's Commission on the Status of Women, chaired by Rep. Edith Green, D-Oregon. The topic was legislation to guarantee equal pay for women. Various individuals at the meeting expressed frustration at the resistance in Congress to the principle of equal pay for equal work.
Green responded by saying, in effect, if you think that's an example of irrational sex discrimination, get a load of this:
"One—the final—most ridiculous matter that came to my attention during all of the time we have had this legislation before us was a case [that] happened in London. A girl by the name of Diana decided she would change her sex and became Jonathan. And she worked for the British Ministry. She put an ad in the paper notifying the general public that she was no longer Diana but Jonathan such-and-such," Green said.
"When she reported for work the next week for the British Ministry, she automatically had a pay increase, because she was now a man instead of a woman, even though she was doing the identical work she was doing the week before. … The ultimate in discrimination," Green continued.
In the early 1960s, Diana became Jonathan and got a raise. In 2013, William became Aimee and got fired. Green—one of the members of Congress who voted two years after this meeting to enact Title VII—nailed it: the ultimate in sex discrimination. No one at the meeting disagreed.
I do not know whether or how many other members of Congress knew of the Diana to Jonathan story when they voted for Title VII in 1964. What matters is how reasonable people perceived that situation. The reaction of Green—a schoolteacher, wife and mother before she served two decades in the House of Representatives—should be a reminder to today's justices of what the common sense conclusion would be—both then and now.
Firing people because of who they are is precisely what Title VII was enacted to prevent. That is just as true for Aimee Stephens and other trans people trying to keep their jobs as it is for anyone else. We rely on courts to see through bias and apply the law. It is up to the Supreme Court to do that in the Stephens case.
Nan D. Hunter is a professor of law at Georgetown University Law Center.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllDemocratic State AGs Revel in Role as Last Line of Defense Against Trump Agenda
7 minute readBig Law Communications, Media Attorneys Brace for Changes Under Trump
4 minute readTrump's SEC Overhaul: What It Means for Big Law Capital Markets, Crypto Work
Trump's Solicitor General Expected to 'Flip' Prelogar's Positions at Supreme Court
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250