The “ordinary meaning” of sex

In a controversial decision, the United States Supreme Court has held by 6-3, in Bostock v Clayton County, Georgia (No. 17–1618; June 15, 2020), that the prohibition of “sex discrimination” in the workplace in Title VII of the federal Civil Rights Act of 1964 means that an employer cannot discriminate on the basis of “sexual orientation” or “gender identity”. Both majority and minority focus strongly on the issues of how statutes should be interpreted. In my view the concerns expressed by the minority about the “literal” approach of the majority judgment are well-justified, as are the possible detrimental implications for religious freedom in the USA. I will also comment briefly on how similar issues would be resolved in Australia.

The Facts

The judgment of the Court relates to not one, but three separate claims. Without going into the details, two of these claims involve an employee dismissed on account of his homosexuality; the third involved an employee dismissed on the ground of gender identity:

When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her withgender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.” 

Gorsuch J (for the Court), slip op p 3,

The cases are considered together because they each raise the issue: given that Title VII prohibits “unlawful discrimination on the basis of sex” (78 Stat. 255, 42 U. S. C. §2000e–2(a)(1)), does it also forbid discrimination on the basis of homosexuality (or more generally, “sexual orientation”) or gender identity (“transgender status”)?

Similar issues have been raised over the years with lower Circuit Courts in the US. For many years the consistent answer was, No- sex discrimination is a different thing from these other forms of discrimination. In more recent years (since about 2017) there has been a division of opinion within the Federal courts.

The majority 

Gorsuch J wrote the majority decision for the Court. He held that the phrase “sex discrimination” covered detrimental treatment in the workplace on the other grounds as well. He said that he was simply relying on the words of the statute, not on “policy grounds” or legislative history. He claimed to be relying on the “ordinary public meaning of its terms at the time of its enactment” (slip op at 4).

His Honour accepted that “sex” was a straightforward word that would have been understood by all in 1964 as “status as either male or female [as] determined by reproductive biology” (at 5). (A view, it might be noted, which has recently received some challenge after assertion that there are genuine biological differences between men and women by the well-known author J K Rowling.)

So how, then, does Gorsuch J conclude that “sex discrimination” includes detrimental treatment of someone (regardless of their biological sex) who is sexually attracted to the same sex, or someone (regardless of what their biological sex is) who wants to live as the sex opposite to that? He does this, in brief, by arguing that every decision based on these criteria logically must include consideration of sex.

How he does this is, to be frank, hard to follow, but as far as I can understand it, here it is:

  • the test to apply to decide whether someone makes a decision “on account of” sex, is to see whether the sex of the alleged victim is a “but-for” cause of the decision. “So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law” (at 6).
  • “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” (at 9)
  • “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” (at 9). The example he gives is where there are two employees, a man and a woman, and they both “attracted to men”. If the man is fired because of his homosexuality, but the woman is not fired, then this is a clear example of treating men and women differently, and hence sex discrimination is involved.

His Honour makes other arguments, seeing support for his views in some previous decision. But the “but-for” logic seems to be at the heart of the argument- if a person’s sex plays any role whatsoever in the decision, then it involves sex discrimination. In particular he rejects the view that the intent of Congress can be found by looking at the legislative history of the law- instead, what must be given primacy are the words that are used. In the debates over interpretative approaches to statutes in the US, Gorsuch J wants to be seen as a strict “textualist”.

The dissenters

But the dissenters reject the form of “textualism” used by Gorsuch J, characterising it as “literalism” rather than paying attention to the “ordinary meaning” of words and phrases. Alito and Thomas JJ join in one dissent, Kavanagh J in another, both dissents expressing similar concerns. In effect the dissenters point out that no-one in 1964, when the law was enacted, would have thought that “sex discrimination” included choices made on the grounds of homosexuality or transgender status. Indeed, while not supporting the previous law, they note that homosexual activity was a crime in many jurisdictions in 1964, and that there were a number of high-profile cases of people being dismissed because they were known to be homosexuals. Yet no-one in the 1964 debates suggested that the new Title VII provisions would in any way deal with this issue. Gender dysphoria was barely known at the time as a medical condition.

While I can’t do justice to the compelling arguments offered by the dissenters, in effect they say that the Court (the majority judgment) is reaching a policy outcome they prefer and acting as a legislator, bringing about change to Title VII which Congress itself has been debating for years and not yet made. They say that the “ordinary meaning” of a phrase is not to be found by a technical logical analysis of the separate words, but by looking at how the phrase is used by people in the community at the time.

Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. 

Alito J, slip op at 24

To use a phrase employed by many a preacher when discussing the Bible, “a text without a context is a pretext”! (See Neil J Foster, “Statutory Construction and Biblical Hermeneutics- Law in the Service of the Gospel?” First Annual Australian Conference for the Academy and the Church, Brisbane, June 30-July 3 2009 at p 8).

Hence it is not illegitimate, but a key part of the task of interpretation, to consider the reasons for the statute and the shared understanding of members of Congress and the community at large of particular phrases, to determine the meaning of the phrases.

Impact on Religious Freedom?

Will the view of the majority here have an impact on religious freedom? Gorsuch J says that it will not necessarily, but he refuses to provide detailed guidance. It seems worthwhile to quote an extended passage:

Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3. 

Gorsuch J, for the Court, slip op 32.

His Honour is well aware of the religious freedom issues. In these cases he notes that at one point the funeral parlour had raised an RFRA argument, but this was dropped and not appealed, so the Supreme Court had no active religious freedom issues to deal with. He notes that Title VII does exclude its application to some religious groups, and that arguably the RFRA may “supersede” Title VII in some cases (but that last comment will no doubt be disputed by many who are opposed to extending religious freedom protection generally).

Alito J is more concerned about the implications of the Court’s view here. He notes the possible arguments that will now be made about access to bathrooms of one sex by transgender persons whose biology remains of the opposite sex; about schools and the rules they may apply to students; about hospitals required to carry out controversial medical procedures. He notes that while some protection will remain for “ministers of religion” under the decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012), the exemptions under Title VII may not allow all schools or other religious bodies to operate in accordance with their faith commitments now that the law has been extended to cover sexual orientation and gender status:

Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.

Alito J, slip op at 50.

There may also be implications for free religious speech:

The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.

Alito J, slip op at 52-53

Some, of course, may be happy with these implications. But there is much to be said for the view that these many and varied implications should have been explored and dealt with by Congress itself, rather than now having to be agonised over by Federal judges for years to come.

Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.

Alito J, slip op at 54.

The Australian position

Briefly, the development seen here, of extending discrimination laws to operate in relation to sexual orientation and gender identity, has been in place in Australia for a while already. State laws have dealt with these matters for some years, and in 2013 the Commonwealth Sex Discrimination Act 1984 was expanded to make discrimination on these grounds unlawful, in employment and in other areas. But at least this was done through a Parliamentary process, and in the course of doing this consideration was specifically given to relevant exceptions and “balancing clauses” to protect other interests. Religious freedom has been protected in provisions such as sections 37 and 38 of the SDA, which allow religious bodies and faith-based schools to operate generally in accordance with their faith commitments.

There is, of course, ongoing debate and discussion about the parameters of these protections, as witnessed by debates in the Federal Parliament at the end of 2018 following the recommendations of the Ruddock Report. The Australian Law Reform Commission has a project (temporarily on hold at the moment until the proposed Religious Discrimination Bill is finalised) to consider the appropriate scope of these religious freedom protections in discrimination laws. But before any changes are made flowing from whatever recommendations are made, there will be debate in Parliament and room for negotiation and recognition of the strength of the various rights involved. My view is that we can be grateful that we do not have a final appellate court in this country which is as willing as the US Supreme Court is to make significant policy changes in areas where the elected Parliament has chosen not to act.

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