Symposium: Hiding elephants in mouseholes: The original meaning of “discrimination on the basis of sex”

Stephanie N. Taub is Senior Counsel and Michael Berry is Chief of Staff for First Liberty Institute.

It would be difficult to imagine, in 1964, when Congress enacted the Civil Rights Act prohibiting employment discrimination on the basis of sex, that Congress understood those words to prohibit discrimination on the basis of gender identity or sexual orientation. At the time, the commonly understood meaning of the term “sex” simply referred to male and female.

Why does it matter what “sex” meant 55 years ago?

First, the Supreme Court has shown a renewed willingness to interpret statutes according to the original meaning of the text. As the justices are contemplating the proper interpretation of the Civil Rights Act in three upcoming cases, Harris Funeral Homes v. EEOC, Altitude Express v. Zarda, and Bostock v. Clayton County, it is likely they will begin with the text of the statute and its original public meaning. After all, as Justice Elena Kagan has quipped about the practice of statutory interpretation, “we are all textualists now.”

Second, there are sound policy reasons to embrace the original meaning of statutory text. Left, right, or center, we should all be more comfortable with judges who interpret the law as it is rather than how they would like it to be. One of the cornerstones of our system of separation of powers is that the legislative branch, not the judicial branch, makes law. Ultimately, it is Congress’ responsibility to decide whether to include certain classes of persons under federal law. Moreover, if Congress at any time believes it was over- or under-inclusive, it is free to amend the law.

Finally, both parties’ merits briefs focus heavily on original meaning. The key dispute is whether the employment actions taken in these cases constitute discrimination on the basis of “sex,” assuming the original public meaning in 1964.

The Department of Justice and the Alliance Defending Freedom, on behalf of Harris Funeral Homes, argue that the statute prohibits employers from discriminating against women in favor of men, and vice versa. They argue that the Civil Rights Act has always been interpreted to allow separate dress codes and restrooms for males and females. Consequently, employers are free to take employment actions against individuals who do not adhere to the dress code that corresponds with their biological sex, whether or not those individuals identify as transgender.

Conversely, the ACLU, on behalf of Aimee Stephens, argues that it is sex discrimination to consider sex at all when making employment decisions. The brief invokes a classic test for determining sex discrimination: “whether the evidence shows treatment of a person in a manner which, but for that person’s sex, would be different.” It argues the employer’s actions meet this test because Harris Funeral Homes would not have fired Stephens for identifying and dressing as a woman had Stephens been born female.

In response, Harris Funeral Homes argues that the ACLU misidentifies the proper comparator for Aimee Stephens. Because Harris would have taken the same action against anyone who does not wish to follow the dress code of that person’s biological sex, whether male or female, there is no discrimination on the basis of sex.

The second key issue discussed by the briefs is what to make of the Supreme Court’s decision in Price Waterhouse v. Hopkins.

According to the ACLU, Price Waterhouse prohibits sex stereotyping, barring adverse employment decisions based upon a person not acting in accordance with common or perceived stereotypes about how people of their sex ought to behave. Just as Ann Hopkins was denied a promotion for being too masculine, Aimee Stephens cannot be fired for being perceived as too masculine for a female or too feminine for a male.

The DOJ responds that Price Waterhouse did not bar sex stereotyping per se. It is not unlawful to make distinctions based on sex, such as sex-specific dress codes and restrooms, provided they do not operate to the disadvantage of one sex over another. Instead, the opinion merely established that sex stereotyping can constitute evidence that an employment decision was improperly motivated by an individual’s sex. But it is not sex discrimination to enforce a dress code.

Needless to say, it would be a paradigmatic shift to interpret Title VII’s bar on sex discrimination to functionally bar discrimination on the basis of gender identity or sexual orientation as well. Generally, the Supreme Court is cautious to yield a statutory interpretation that constitutes a significant policy change. As the maxim goes, Congress does not hide elephants in mouseholes. All things considered, it seems likely that this Supreme Court will continue to leave such large policy shifts to the discretion of Congress.

Our firm, First Liberty Institute, submitted an amicus curiae brief in these cases, focusing narrowly on potential religious-freedom implications for many religious denominations. We asked the court, regardless of how it rules on the primary issue of the scope of Title VII, to consider the impact on religious houses of worship, charities, nonprofits, schools and other ministries.

Religious ministries, including houses of worship, are not categorically excluded from the reach of Title VII. As the Supreme Court unanimously held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the First Amendment’s ministerial exception protects those organizations’ ability to choose their own ministers or religious leaders, regardless of whether such decisions might otherwise violate federal employment discrimination law. However, religious ministries still could be held liable based on unlawful employment decisions related to nonministerial positions.

People of faith often seek to operate in communities that share a common commitment to their religious tenets. Many religious denominations in America hold sincere religious beliefs about the nature of marriage and gender. If Title VII is interpreted to functionally include sexual orientation and gender identity as protected classes, a question will arise as to whether these religious ministries may continue to apply faith-based employment standards related to sexual conduct and gender expression.

Our amicus brief argues that Congress, through Title VII’s statutory religious-employer exemption, has already provided an answer. Properly interpreted, the exemption allows religious ministries to maintain faith-based hiring standards — to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts. We asked the Supreme Court to resolve the present ambiguity in the lower courts and hold that the religious-employer exemption protects the freedom of religious ministries to maintain faith-based codes of employee conduct. In a future case, this solution would allow, for example, a Catholic school to continue being Catholic.

Interpreting the statutory religious-employer exemption in this way would not only best align with the original meaning of the statutory text, but it would also prevent the government from encroaching on the internal affairs of religious ministries, limit the courts from unconstitutionally entangling themselves with religion, and safeguard First Amendment rights for Americans of all faiths.