Symposium: How the Title VII trilogy may test the court

Andrée Sophia Blumstein is the Solicitor General of Tennessee.

Word is out that the Title VII trilogy set for argument in the Supreme Court on October 8 — Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC — is crucially significant because the court will decide the scope of workplace protection for LGBT employees. And indeed, these three cases are highly significant, but also for a very different reason: How they are decided will signal whether the court is inclined to stay in its constitutionally assigned lane as expositor of the law and avoid veering into the policy-making lane reserved for Congress.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of such individual’s … sex.” The question presented in these three cases is whether this language also prohibits discrimination based on sexual orientation or gender identity.

Apparently, Congress itself thinks the answer is no. The House of Representatives has recently made a finding that the “absence of explicit prohibitions of discrimination on the basis of sexual orientation and gender identity under Federal statutory law has created uncertainty for employers.” For that very reason, the House passed the Equality Act of 2019 to expand Title VII to include “sexual orientation” and “gender identity” within the meaning of “sex.” That bill is currently before the Senate.

Because the current language of Title VII provides no legal basis for extending “sex” to include “sexual orientation” or “gender identity,” the employees in the three cases are essentially asking the court to decide as a matter of policy that employers should be prohibited from discriminating on the basis of sexual identity and gender identity. The policy reasons for expanding the scope of Title VII protections may be compelling, but it is not for the court to make that policy determination. Only Congress has the constitutional authority, the institutional competence and the democratic legitimacy to revise statutes in response to new social problems and societal preferences. See Wisconsin Central Ltd. v. United States. It is for Congress, the branch designed to be the voice of the people, to decide “what competing values will or will not be sacrificed to the achievement of a particular objective.” See Rodriguez v. United States. Thus, only Congress may make the policy decision to expand Title VII to ban discrimination based on sexual orientation and gender identity.

Such policy-making would be beyond the judicial pale. The Supreme Court is not a legislature; it has power only to say what the law is, not what the law should be. See Obergefell v. Hodges (Chief Justice John Roberts,  dissenting). Judges may not substitute their social or economic philosophies for the judgment of legislators, the elected representatives of the people. See Ferguson v. Skrupa.

The expansion of Title VII that the employees are seeking may well be good and desirable policy, but the legal basis for that expansion is nonexistent. It is a fundamental canon of statutory construction that words be given their ordinary, common meaning as of the time Congress enacted the statute. Until Congress revises the statute, the statute’s original public meaning prevails. Courts may not read into a statute something that Congress omitted, nor may they read the statute to mean something other than what Congress has said in the law as written. See University of Texas Southwestern Medical Center v. Nassar.

The plain and unambiguous meaning of “sex” in 1964 — and now — is limited to a person’s biological status as male or female. The terms “sexual orientation” and “gender identity” have long been used to mean something quite distinct. Although “sex” refers to biological or anatomical status, “gender identity” refers to a person’s psychosexual status, i.e., one’s subjective, individual sexual identity in contradistinction to one’s sex. “Sexual orientation” similarly refers to a person’s subjective sexual identity, generally related to the biological status of people to whom that person is attracted.

Thus, in its original public meaning and its meaning today, Title VII prohibits only discrimination based on biological sex. It prohibits disparate treatment that favors men over women or women over men. If an employer requires all biologically male employees to wear men’s suits, a biologically male employee who identifies as a woman is not discriminated against “because of sex” when she is required to wear a men’s suit and is not permitted to wear women’s attire. That person is treated just as is every other biologically male employee. For decades, lower courts have typically adhered to that original public meaning, the judicial consensus being that Title VII does not prohibit discrimination based on sexual orientation or gender identity. The employees in these three cases nevertheless argue that discrimination based on transgender status or sexual orientation necessarily involves sex discrimination within the ambit of Title VII.

But expanding Title VII in that way is not without problematic consequences. For example, under the employees’ theory, voluntary affirmative-action programs benefiting women might no longer be permitted because they require employers to consider sex to implement the program. Similarly, allocating access to living, sleeping and restroom facilities on the basis of sex might be invalidated, as might sex-specific physical-fitness, dress and grooming requirements. Such conditions of employment — conditions that are currently permitted — might no longer be tolerated because implementation would require employers to take notice of the employees’ sex.

Title VII strikes a balance between employee rights and employer prerogatives; it prohibits discrimination while respecting business interests and workplace efficiency. See Price Waterhouse v. Hopkins. But under the employees’ would-be expansion of “sex,” important interests of employers — not to mention of the public and of co-employees — would no longer be protected, or at least they would be reweighted. Any rebalancing of these interests calls for sensitive policy-making. Clearly, that is a job for the law- and policy-making branch of government. Congress, not the court, is best positioned to weigh competing values and strike the appropriate balance among them.

Expanding the scope of “sex” in Title VII beyond its original public meaning could also have adverse consequences beyond the workplace. Any judicial re-definition of “sex” under Title VII will likely reverberate in Title IX, which prohibits discrimination on the basis of “sex” in education programs that get federal funding. Like Title VII, Title IX takes into consideration competing values and interests. For example, Title IX allows for single-sex colleges because of the perceived benefits of education in a sex-segregated environment. And like Title VII, Title IX is designed in some measure to protect one sex against the other. To that end, Title IX authorizes sex segregation in showers, locker rooms and restrooms. It also allows sex segregation in competitive sports so that women can compete at high levels and still be protected against uber-competition from men. That protection evaporates if “sex” includes gender identity; men who identify as women would be allowed to play on women’s teams — demonstrably to the competitive disadvantage of the women in sports such as basketball and swimming.

There is another reason not to expand “sex” in Title VII beyond its ordinary and normal meaning. Congress applied Title VII to the states in reliance on its authority to enforce the 14th Amendment under Section 5. As detailed in the amicus brief of states of Tennessee, et al., reading “sex” in Title VII to include “sexual orientation” and “gender identity” triggers a serious constitutional question as to whether Congress validly abrogated state sovereign immunity for claims of discrimination based on sexual orientation or gender identity. The constitutional-doubt canon should lead the court to steer clear of that thorny constitutional question by limiting “sex” to its ordinary and natural meaning.

In any event, Congress’ legislative efforts since 1964 confirm that “sex” in Title VII does not include “sexual orientation” or “gender identity.” Congress has expressly dealt with gender-identity and sexual-orientation discrimination in many other statutes. Federal hate-crime legislation is but one example. This leaves no doubt that Congress appreciates the difference between “sex” and “gender” and knows how to prohibit gender-identity discrimination when it wants to. But Congress has yet to do so in Title VII. Title VII prohibits only “sex” discrimination, and the plain meaning of “sex” is biological status as male or female, not sexual orientation or gender identity. Only Congress has the authority to revise the statute.

States have special concerns when it comes to legislation by judicial fiat. Article I fosters deliberative, bicameral, responsive lawmaking, a process intended to protect state interests and respect state rights. Judicial rewriting of a statute sidesteps that process and disregards those rights and interests. And when the courts regulate beyond what Congress intended, they may stymie state efforts to offer solutions that are the most responsive to local interests and concerns.

The concerns of the people must also be respected. The people, as well as their state and federal elected representatives, “are in the midst of a serious and thoughtful public debate” on the important policy issues raised by these three cases. See Obergefell v. Hodges (Chief Justice John Roberts, dissenting). It seems prudent — not to mention constitutionally mandated — to let that debate take its proper course through Congress.