Wednesday, June 17, 2020

Gorsuch, Textualism and the Meaning of 'Sex'

Bostock v Clayton County: Three Interpretations of Title VII
Neil Gorsuch
Assoc. Judge Neil Gorsuch
On Monday, June 15, 2020, the U.S. Supreme Court ruled that the ban on sex discrimination in Title VII of the Civil Rights Act protects gay and transgender workers. (Bostock v Clayton County, Georgia, No. 17–1618). The majority opinion, written by Justice Neil M. Gorsuch and joined by five of his colleagues, not only surprised conservatives and liberals alike but it employed a theory of constitutional interpretation that has been mired in controversy since the founding of the United States of America. Here is a brief summary:
The facts. Three people had been fired by their employers based in part on sex. Child welfare advocate Gerald Bostock was fired after he began participating in a gay recreational softball league. Bostock was fired because he was gay. Skydiving instructor Donald Zarda was fired days after he mentioned that he was gay. Aimee Stephens was fired after she told her employer that she planned to live and work full time as a woman. Although two of the plaintiffs are now deceased (Zarda and Stephens) all three had appealed to the courts for redress.
The law. Title VII of the Civil Rights Act makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The question before the Court was whether an employer can fire someone simply for being homosexual or transgender.
The decision. Judge Gorsuch wrote that “the answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undistinguishable role in the decision; exactly what Title VII forbids.” Gorsuch went on to say that the “ordinary public meaning” of Title VII at the time of its adoption results in “a straightforward rule” that an employer violates Title VII when it intentionally fires an individual based in part on sex.
The argument. According to Judge Gorsuch, Title VII of the Civil Rights Act demands only that a person’s sex, like race, color, religion or national origin not be a barrier to being hired or a justifiable reason for being fired. Moreover, the word ‘sex’ includes not only being heterosexual; it is a much broader term, including both being homosexual and being transgender.
To further clarify, Judge Gorsuch’s point is that the the framers of Title VII may have intended that the word ‘sex’ applies only to biologically male and female persons, thereby making unlawful only those intentional hirings or firings based on the person being in one of these two two categories (for example a woman who is refused a job as auto mechanic because she is a female or is fired from the job when it is belatedly discovered that she is female).
Judge Gorsuch admits that “those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result [i.e. this decision]. Likely, they were not thinking about many of the act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
What does Judge Gorsuch think that the the law demands?
“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s be­cause it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” (Bostock, 9).

Two theories of constitutional and legal interpretation. A theory of constitutional interpretation provides an answer to the question "How should the provisions of the Constitution, its amendments and federal Acts be interpreted?" This is a normative question, calling on legal scholars to state and defend a standard or principle that would provide the most plausible way to interpret a troublesome phrase, paragraph, section, or Act, consistent with precedent, plain English and the intent of those who wrote the law.
There have been several attempts by philosophers of law to provide a theory of legal interpretation. Some scholars and judges have implicitly rejected making any such attempt by saying that a judge needs only to look at the text and “plain meaning” of the words in the law.[1] This approach is called textualism or originalism. Judge Gorsuch is among its proponents. He is in effect saying that no interpretation of the text is needed. The text speaks for itself.[2]
Using 'plain English' to guide us in understanding the content of our laws is analogous to most of our non-legal day-to-day conversations. If my wife tells me she is going grocery shopping this afternoon, I do not need to interpret her words. She is not speaking a foreign language, nor is she using technical terms that I cannot comprehend. I do not need to deduce what she means from her statement, as if she has given me the premises of an argument from which I am to arrive at a conclusion.
By analogy, if the words used in a federal Act or in the Constitution itself are in plain English, understandable by anyone who is conversant with the language, then there is no need for an interpretation or a deduction. For example, here is some "plain English" used by the framers in writing the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I agree that there may be some otherwise intelligent people in the 21st century who may not have used or remember the words "redress," or "abridging," but to the great majority of our citizens these words have a clear meaning. All of us certainly understand the famous phrase "make no law...abridging the freedom of speech or of the press." There is no need to launch an interpretation of its meaning. As Justice Hugo Black put it in a free speech case:
The First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that "Congress shall make no law . . . abridging the freedom of speech, or of the press." I read "no law . . . abridging" to mean no law abridging (Concurring opinion, Smith v. California, 1959, my caps)

It has been pointed out that those who use Justice Black's textualist or originalist approach to reading the First Amendment makes it impossible for Congress to create a law prohibiting the disclosure of military secrets. They would argue that although the language of the amendment clearly says “no exceptions” to the prohibition, "the framers never intended that it be applied in a perfectly literal way" (Altman, 98[3]).
I suspect that if Justice Black was alive today, he would greet this conjecture about the framers' intentions by repeating the following statement he made at the first James Madison lecture:
It is my belief that there are "absolutes" in our Bill of Rights, and that they were put there on purpose by men who knew what the words meant, and they meant their prohibitions to be "absolutes." (Black, 1960[4]).
Justice Black is standing his ground. He would rather stick with the plain English text of the 18th century rather than accept any guesses about the intentions of the framers who wrote the original words “no law abridging.”
If we agree that the 18th century framers of the First Amendment knew what their words meant, then why shouldn't we also conclude that the mid-20th century framers of Title VII knew that their use of the word "sex" meant only being biologically male or being biologically female?
Judge Gorsuch is right in his remark that the “plain English” meaning of ‘sex’ in the 21st century is now dramatically different. We now use it broadly. But the three dissenters to the majority opinion (judges Alito, Thomas and Kavanaugh), espousing the alternative framer’s intent theory, argue just as strongly that the intention of those who drafted Title VII should prevail when interpreting the meaning of the relevant words.
 It seems obvious from what we know about mid-20th century culture that the word ‘sex’ did not refer ‘broadly’ to include homosexual and transgender persons. The dissenters’ ultimate point is that the judiciary ought not to make law. It is the business of the legislative not the judicial branch to make the necessary changes if they want to make sure that the word ‘sex’ has a meaning consistent with 21st century cultural change.
An alternative theory of legal interpretation. Text or framer’s intent? We seem to be at a standoff. But there are alternatives. For example, the late Ronald Dworkin argued strongly for a purposive theory that legal rules must be tied to moral principles that express "the fundamental purposes of government and the proper relation between government and the individual,"[5] regardless of either the text of the statute or the intent of its framers. The best moral principles, he wrote, must underlie the rules of law.. 
The best way to understand this is to look at how Dworkin would deal with the Bostock case . He would want us to consider a moral principle of the political community that is both logically consistent with Title VII of the Civil Rights Act and would justify it. Accordingly, a principle stating that ‘sex’ should be understood narrowly (‘being male’ and ‘being female’) was relevant to a determination of equal treatment under Title VII when it was enacted in the mid-20th century. But this test of sexual equality would now fail on two counts: it is neither consistent with Title VII nor would it justify it.
The pre-21st century understanding of equality  allowed people to be fired for being homosexual or transgender. A principle that expresses a contemporary 21st century view of equality would broaden to include not only those who are biologically male and female, but also those who are classified as homosexual or transgender.
The broad meaning of ‘sex’ expresses a conception of equality that is at the heart of the Fourteenth Amendment to the Constitution. To hire or fire persons because they are homosexual or transgender is like hiring or firing them because of their race or ethnicity. Echoing Justice Earl Warren’s eloquent words in Loving v Virginia (388 U.S. 12), I would argue that treating people differently under the law because of their sex is “directly subversive of the principle of equality.” The principle of equality, Warren wrote, is “at the heart of the Fourteenth Amendment.” Although Warren was referring to race, not sex, to be refused a job or fired from a job because of sex “is surely to deprive all the State’s citizens of liberty without due process of law.” The Fourteenth Amendment does not guarantee that everyone should get the job for which they apply. But it does guarantee that the decision of employers to hire or fire cannot be restricted by invidious sexual discrimination.
Dworkin would argue that the conception of equality expressed in Loving by a unanimous Supreme Court is a more advanced conception of equality than the idea expressed 100 years earlier. My argument mimics Dworkin and Warren. A broad meaning of ‘sex’ (as suggested by Judge Gorsuch) expresses a more advanced conception of equality than the idea expressed only 56 years ago.
A principle that includes this advanced 21st century conception of equality is 'morally better' than a principle that admits only a narrow conception of sex as a relevant consideration when creating and interpreting laws governing hiring and firing. Firing a worker for being transgender is like firing a worker for having blue eyes. Neither of these characteristics are relevant to deciding competence for doing the work for which they are hired or fired.
The guiding idea of Dworkin's purposive theory of interpretation is that we cannot fully understand the nature of law and a legal system until we understand not only its rules but the fundamental moral principles that lie under and justify them. The textual/originalist and framer’s intent theories of legal interpretation are silent on both of these issues.

For further discussion of theories of legal interpretation and other topics in the philosophy of law, see Laurence Houlgate, Philosophy, Law and the Family: A New Introduction to the Philosophy of Law (Springer, 2016)
[1] In Chisholm v Georgia, Justice Wilson argued that the doctrine used to decide the case before the Court "rests not upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself."

[2] Neil Gorsuch recently authored a book promoting textualism/originalism: A Republic, If You Can Keep It (2019: Crown Publishing)

[3] Altman, Andrew. 2001. Arguing About Law: An Introduction to Legal Philosophy. (Belmont, CA: Wadsworth).

[4] Black, Hugo. 1960.  "The Bill of Rights". New York University Law Review, Vol. 35: April.

[5] Dworkin, Ronald. 1977.   "Is Law a System of Rules?" in Ronald Dworkin The Philosophy of Law. (New York: Oxford University Press).