Last October, the Court heard oral arguments in Bostock v. Clayton County, a consolidation of two cases from the Second and Eleventh Circuits, in which the plaintiffs, two gay men, alleged that they were fired “because of . . . sex.” The first of these plaintiffs, Donald Zarda, lost his job as a skydiving instructor after he disclosed his sexual orientation with female clients in order to alleviate their concerns about being strapped hip-to-hip during tandem jumps. See Brief for Respondent at 3–4, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), cert. granted, 139 S. Ct. 1599 (Apr. 22, 2019) (No. 17-1623) (argued Oct. 8, 2019). The second plaintiff, Gerald Bostock, was let go from the Clayton County guardian ad litem office after he recruited members of his softball league, also gay men, into one of the office’s volunteer programs. See Brief for Petitioner at 4–6, Bostock v. Clayton Cty. Bd. of Comm’rs, 723 F. App’x 964 (11th Cir. 2018), cert. granted, 139 S. Ct. 1599 (Apr. 22, 2019) (No. 17-1618) (argued Oct. 8, 2019). Relatedly, the Court also heard R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, concerning the firing of Aimee Stephens, a trans woman, from her job at a funeral home following her decision to begin expressing as a woman. See Brief for Respondent at 4–9, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), cert. granted, 139 S. Ct. 1599 (Apr. 22, 2019) (No. 18-107) (argued Oct. 8, 2019). She too brought suit under Title VII.
Not surprisingly, the brunt of the parties’ arguments concerned the meaning of the term “sex,” as it appears in the now 55-year-old Civil Rights Act. In each case, the employers contend that “‘sex’ refers to a person’s status as either male or female determined by reproductive biology” and does not also mean sexual orientation. Brief for Petitioner at 13, Zarda, No. 17-1623. Therefore, Title VII holds no protection for LGBTQ employees.
But the employees do not necessarily disagree as to the meaning of the term “sex.” And although they have asserted that the underlying purpose of the Civil Rights Act was to eradicate discrimination in all its forms, the majority of their arguments are remarkably text-based and appear to concede the employers’ definition of the term. For instance, attorneys for Bostock and Zarda argue that firing an employee based on sexual orientation is a decision motivated by that person’s sex under the Supreme Court’s test for sex discrimination in Manhart—“whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different.” City of L.A., Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (internal quotes omitted). That is, where an employer fires a male employee for pursuing relationships with other men but takes no equivalent action against female employees in relationships with men, the employer has committed sex discrimination actionable under Title VII.
The employers have countered that the employees’ argument loads the dice by changing two variables for the purposes of the Manhart hypothetical test: not only the employee’s sex but also his or her sexual orientation. In other words, one’s sexual orientation is a completely distinct trait from sex—one not currently protected under Title VII and fair game as a basis for discrimination.
That is an incorrect assertion, at least from a scientific and psychological perspective. In fact, much of what we now know about sexual orientation contradicts prior conceptions of immutability, cause, and even personal choice. These misconceptions are, however, reflected in the landscape of civil rights law.
To the extent that our modern understanding of sexual orientation suggests that discrimination against gay employees is, in fact, discrimination “because of . . . sex,” what effect should that knowledge have on the Court’s interpretation of Title VII? The employers’ answer is clear: It is inconceivable that the enacting Congress would have understood that protections based on “sex” would also extend to LGBTQ individuals. That is a fair argument and one that is clearly informative to determining original meaning. But mistakes of fact regarding the nature of sexual orientation need not constrain a present-day application of a statutory term, even for originalists.
That is, rather than construct a new meaning for the term “sex” to necessarily include sexual orientation—a clear sin for originalists and textualists—it is still possible to find new applications for a law that are entirely consistent with its original meaning. While the remainder of this article would likely prove informative for determining whether Title VII also protects trans individuals from employment discrimination, this analysis focuses on resolving the question before the Court in Bostock.
Current Understandings of Sexual Orientation
Over the decades since the enactment of the Civil Rights Act, scholars have grown the collective understanding about sexual orientation. While a review of these developments is clearly beyond the scope of this article, a few salient features are pertinent to the arguments made in Bostock.
To begin with, according to Professors Lisa M. Diamond and Clifford J. Rosky in their article “Scrutinizing Immutability: Research on Sexual Orientation and U.S. Legal Advocacy for Sexual Minorities,” modern understandings of sexual orientation suggest a multifaceted definition that includes patterns of attraction, behavior, and a sense of identity based thereon. See 53 J. Sex Res. 363, 365 (2016). Taken together, these factors place individuals on a continuum of sexuality where lines are difficult to draw. That is, while often discussed in terms of three general categories—heterosexuality, homosexuality, and bisexuality—these labels are perhaps more of a convenience than an accurate description of sexual orientation. Moreover, they reinforce misconceptions regarding what is normal for an individual to feel and what sort of experiences are deviant.
Because sexual orientation does not fall into neat categories or phenotypes, the source of the identifier can be considered external rather than internal. Consider what the American Psychological Association says about sexual orientation: “Sexual orientation is commonly discussed as if it were solely a characteristic of an individual, like biological sex, gender identity or age. This perspective is incomplete because sexual orientation is defined in terms of relationships with others.” Am. Psychological Ass’n, For a Better Understanding of Sexual Orientation & Homosexuality, Answer to “What Is Sexual Orientation?” (2008). In other words, sexual orientation is perhaps not self-defining but dependent on primarily behavioral factors; i.e., a man does not pursue other men because he is gay, but a man is gay because he pursues men.
Likewise, psychology has moved beyond the age-old nature versus nurture debate, recognizing that the inquiry is far more complex. Genetic and biological factors appear to have minimal effect on one’s choice of sexual partners, and even if these factors were determinative, studies demonstrate that sexual orientation is subject to change during an individual’s lifetime. Some people even perceive a sense of personal choice in the matter, though change compelled by external forces like conversion therapy has proven ineffective. Taken together, these aspects suggest that sexual orientation is not, in fact, an immutable trait comparable to many of the classes typically protected by antidiscrimination laws.
What impact do these principles have on the dispute over Title VII? The employers in Bostock have argued that they did not fire the employees because of their sex but based on an entirely different trait: sexual orientation. This argument amounts to wordplay, or issue framing, given that the employees characterize the discrimination as disapproval of conduct—pursuing other men—and not of a separable trait. See William N. Eskridge, Jr., “Symposium: Textualism’s Moment of Truth,” SCOTUSBlog (Sept. 4, 2019). The problem with the employers’ spin on the dispute is that modern psychology complicates their construction of sexual orientation.
If the categorical conception of sexual orientation inaccurately reflects the continuum of human sexuality, the framing battle shifts in favor of the employees. That is, if we accept the continuum framework, on what basis has an employer discriminated against an employee? It cannot be because the employee is a homosexual—that category does not exist. Rather, the employer is left to draw a line somewhere along the continuum; for instance, between individuals who are attracted to members of the same sex but do nothing, and those who occasionally follow through with those attractions. This is a distinction based on conduct and, therefore, likely to violate the but-for test established in Manhart.
Furthermore, if an individual’s sexual orientation is determined by the class of individuals that they pursue sexually, this also suggests a conduct-based reason for firing. “I fired him because he was gay” translates to “I fired him because he is attracted to men (which makes him gay).” Because such an employer would likely not disapprove of a female employee’s attraction to men, the employer’s firing decision is sex-based.
Mistakes of Fact and Originalist Interpretation
The foregoing arguments support a novel application of Title VII but one that does not necessarily require reinterpreting its original meaning. Neither does interpreting statutory text mean that the judiciary must perpetuate factual mistakes about its applications at the time it was drafted.
Professor Lawrence B. Solum argued this in the context of gender equality, specifically, with regard to the nineteenth-century case Bradwell v. Illinois, 83 U.S. 130 (1872), in which Myra Bradwell sued after she was denied entry to the Illinois bar for being a woman. See “Surprising Originalism: The Regula Lecture,” 9 ConLawNOW 235, 252–55 (2018). Bradwell argued that the Privileges and Immunities Clause guaranteed citizens certain basic rights, including the right to pursue lawful employment, and that she as a citizen had the right to practice law if qualified. Even if Bradwell’s claim had not fallen in the wake of the Slaughter-House Cases, which “gutted the Privileges and Immunities Clause,” Solum asserts that the Court would have denied Bradwell her right solely on the basis that Americans believed women incapable of practicing law when the Fourteenth Amendment was adopted, as indicated by Justice Bradley’s concurring opinion (“I am not prepared to say that it is one of [women’s] fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities.”). But, as Solum writes, that belief represents a mistake of fact contradicting the original meaning of “citizen,” which included women, regardless of whether the public thought women should practice law. Rather than remain chained to factual errors—historical ones, but errors all the same—Solum states that originalists “apply the original public meaning of the constitutional text to the facts as they exist today given current understandings.”
The Court has already found several new applications for the original meaning of sex-based discrimination under Title VII. In Meritor Savings Bank, FSB v. Vinson, it held that sexual harassment constituted discrimination “because of . . . sex,” even though sexual harassment as a concept did not develop until years after the Civil Rights Act was enacted. The same occurred with sex stereotyping in Price Waterhouse v. Hopkins and same-sex harassment in Oncale v. Sundowner Offshore Services, Inc. In none of these cases did the Court inject meaning into the term “sex” that was not present in 1964. Rather, the Court applied the original meaning of sex-based discrimination (discrimination because the employee is a man or woman) to novel understandings of real-world situations.
Neither would the application of modern understandings of sexual orientation violate the original meaning of “sex” in Title VII. To be sure, it is unlikely that the enacting Congress understood that inclusion of the term would prevent an employer from firing an employee on the basis of sexual orientation. After all, the LGBTQ community was heavily stigmatized at the time and frequently discriminated against by the law. Many of the legal barriers for gay people have only recently fallen away, including restrictions on gay marriage and criminal penalties for certain consensual sex acts. See Obergefell v. Hodges, 135 S. Ct. 2584 (2015); see also Am. Civil Liberties Union, History of Sodomy Laws and the Strategy That Led Up to Today’s Decision (last visited Dec. 1, 2019).
Even assuming that Congress did not anticipate protecting gay employees, such an understanding merely constitutes a mistake of fact, like that identified by Solum in Bradwell. Regardless of what the public considered sex-based discrimination in 1964, what is important is the original meaning of the term “sex” and whether its application to the facts in Bostock supports an action under Title VII. Even adopting the employers’ proposed definition as the original meaning of the term, our present-day understanding of sexual orientation suggests that Bostock’s and Zarda’s firings were motivated by their status as male employees—engaging in conduct for which they would not have been fired but for their sex.
Perhaps such a ruling would be perceived as activist. That may be true, but not attributable to the judiciary. Consider Justice Scalia’s reaction against allegations of judicial activism, that the public often overlooks what may be an “activist Congress, which pushes the envelope with statutes that do things that [have] never been attempted before.” “Scalia Vigorously Defends a ‘Dead’ Constitution,” NPR (Apr. 28, 2008). What more compelling example of congressional activism exists than the Civil Rights Act? If Title VII protects gay employees from discrimination in the workplace based on the foregoing arguments, it does so because the text of the act itself provides that protection. For now, at least, we wait on the Court.
