Thus, today, Title VII forbids most employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Read more: The three-letter word that triggered a revolution
“Judge” Smith, as he was known, died in 1976. But imagine that we could summon his shade and ask, “Judge, did you intend for your amendment to protect gay men, lesbians, and transgender people from job discrimination? Did your colleagues in the House?”
I suspect he’d say, “I did not understand a word you said. Can I go now?”
Suppose we decide that Smith’s “intention” in introducing the amendment was to protect white women; suppose we conclude that nobody in Congress in 1964 imagined that Title VII might one day be applied to protect LGBTQ people. Would we then be required to read “because of … sex” to mean “because she is a woman” or even “because she is a white woman”? Of course not. The text says “because of … sex,” and its application starts there.
How the Supreme Court reads that text this fall will make a huge difference in the lives of people all over the country. If a majority concludes that discrimination by sexual orientation or transgender status is discrimination “because of … sex,” thousands of LGBTQ people will be protected on the job; if the Court rejects that argument, many stand to lose their livelihoods.
Is discrimination because of sexual orientation, or gender identity, discrimination because of sex, or because of some other thing altogether? In a trio of cases to be argued in October, employers, supported by the Trump administration, insist that the two things are unconnected. The three cases are:
- Bostock v. Clayton County, in which an employee of a Georgia county was penalized and dismissed after he joined a gay-themed softball league and asked other players to volunteer for work in the court system; the Eleventh Circuit held that this was not an act of discrimination “because of … sex.”
- Altitude Express v. Zarda, in which a skydiving instructor was fired because, while strapping himself to a woman going up for a first jump, he reassured her that he was gay and thus not engaged in groping; the Second Circuit upheld the instructor’s sex-discrimination claim.
- Harris Funeral Homes v. Equal Employment Opportunity Commission, in which a funeral-home employee was dismissed after announcing that she was transitioning to female and would henceforth wear the company’s uniform for female, not male, employees; the federal EEOC supported the employee, and the Sixth Circuit agreed.
Thus, the lower courts need the Supreme Court to settle the question. That resolution will reveal a good deal about the fidelity of the conservatives to a theory several of them espouse. That theory, pioneered by the late Justice Antonin Scalia, is called “textualism.” To give a simplified summary, textualism holds that judges should not guess at the “legislative intent” behind a statute—or even research it by consulting the committee reports and floor speeches that accompanied its passage. The very words of the statute are the only thing that became law with its passage, textualists argue. “The text is the law, and it is the text that must be observed,” Scalia wrote in his influential 1997 book, A Matter of Interpretation: Federal Courts and the Law. In the same book, he wrote, “A text should not be construed strictly and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”