Commentary & Opinion
By Jon Hyman
Apr. 5, 2017
If you spend any time reading or watching the news today, you will inevitably encounter much about the 7th Circuit’s historic (and correct, in my opinion) decision in Hivley v. Ivy Tech Community College [pdf]. You can read the background of this case here.
The court expressly held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hivley now stands in direct contradiction to the opinion of the 11th Circuit in Evans v. Georgia Regional Hosp., which sets up this issue for a showdown in the Supreme Court.
Which turns my attention to the more interesting aspect of this case — the court’s discussions of the role of judges in interpreting statutes. Much was made about this issue in the recent Senate hearing on the nomination of Neil Gorsuch to fill Justice Antonin Scalia’s Supreme Court seat. On this issue, this court has a lot to say.
Let’s start with the concurring words of Judge Richard A. Posner (which include a not-so-veiled shot at Fox News and its view of originalism in statutory construction), who astutely explains that one can act the judicial conservative and interpret original statutory intent as changing with the times.
In 1964 (and indeed until the 2000s), and in some states until the Supreme Court’s decision in Obergefell v. Hodges, men were not allowed to marry each other, nor women allowed to marry each other. If in those days an employer fired a lesbian because he didn’t like lesbians, he would have said that he was not firing her because she was a woman — he would not have fired her had she been heterosexual — and so he was not discriminating on the basis of sex as understood by the authors and ratifiers of Title VII. But today “sex” has a broader meaning than the genitalia you’re born with. …
But it has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles. …
We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society … . We now understand that homosexuals, male and female, play an essential role, in this country … . The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose “interpretation” of the word “sex” in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) “what this country has become,” or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.
Compare this definition of “originalism” to that of the dissenting opinion of Judge Diane S. Sykes:
Of course there is a robust debate on this subject in our culture, media, and politics. Attitudes about gay rights have dramatically shifted in the 53 years since the Civil Rights Act was adopted. … This striking cultural change informs a case for legislative change and might eventually persuade the people’s representatives to amend the statute to implement a new public policy. But it does not bear on the sole inquiry properly before the en banc court: Is the prevailing interpretation of Title VII — that discrimination on the basis of sexual orientation is different in kind and not a form of sex discrimination — wrong as an original matter? …
But the analysis must begin with the statutory text; it largely ends there too. Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination “because of sex” also banned discrimination because of sexual orientation? The answer is no, of course not. …
To a fluent speaker of the English language — then and now — the ordinary meaning of the word “sex” does not fairly include the concept of “sexual orientation.” The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning. …
The words plainly describe different traits, and the separate and distinct meaning of each term is easily grasped. More specifically to the point here, discrimination “because of sex” is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such. There is no ambiguity or vagueness here.
This debate over the meaning of originalism will resume when this issue reaches SCOTUS, and will likely hold the key to how SCOTUS decides whether Title VII’s definition of sex includes LGBT rights. Of course, Congress could moot this entire issue simply by amending Title VII, but I don’t see that happening anytime soon.
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