What did the American public understand the word “sex” to mean in 1964?

That’s the foundational question before the Supreme Court in Harris Funeral Homes v. EEOC. This case originated when Harris Funeral Homes hired a male funeral director who agreed to follow the company’s sex-specific dress policy. Nearly six years later, the director informed the funeral home’s owner of an intent to dress and present as a woman while interacting with grieving families. The outcome of Harris hangs on whether the Supreme Court applies textualism: interpreting a law according to its public meaning at the time of enactment.

Signed into law in 1964, Title VII of the Civil Rights Act forbids employers from discriminating against employees based on race, color, religion, national origin, and sex. On any street corner in America, the public meaning of “sex” in 1964 was clear: biologically male or female, based on genetics. That much is obvious from a look at the dictionary definitions in use at the time—biologically-based definitions that are still in use today by professional groups such as the American Psychiatric Association.

So, if a majority of the justices take a textualist approach—that is, they decide Harris based on the public meaning of the law at the time of its enactment—Title VII should mean that an employer cannot treat women worse than men because they are women, or vice versa. Because the funeral home would not allow a female funeral director to dress and present as a male, it should prevail.

As simple as this seems, those who hope the high court will rewrite Title VII have twisted textualism and argued that a textualist approach yields the opposite result. For example, Georgetown University Law Professor Nan D. Hunter unearthed an archived transcript of a 1962 meeting where a single congresswoman, Rep. Edith Green, D-Ore., made mention of a female employee in Britain who announced an intent to begin presenting as male at a government job and then received a pay increase as a result. Green called that the “ultimate in discrimination.” (In the end, Green ultimately voted against including the word “sex” in Title VII at all, something Hunter’s article curiously omits.)

Convinced she has a smoking gun, Hunter concludes that textualism now demands that the Supreme Court rule against Harris Funeral Homes. In other words, business owners in the 21st century should be held to the standard of what was in the mind of each particular congressional member more than half a century ago. This would be comical if the consequences of redefining “sex” in federal law were not so serious.

Hunter’s analysis has two problems. To begin, it’s not clear whether Green’s comment indicated her belief that the British employee’s treatment even amounted to “sex” discrimination. She may have simply been upset that men were being paid more than women.

More important, textualism requires analyzing how an ordinary American with a reasonable command of the English language would understand a prohibition on “sex” discrimination when Title VII was enacted. The fact that a single member of Congress in 1962 may have considered “sex” discrimination to encompass what happened in Britain does not alter the statute’s original public meaning. No justice who faithfully applies textualism would rely on a single legislator’s subject intent; doing so is the exact opposite of applying a statute’s words based on their original public meaning.

When fairly interpreting those statutory words, it is equally fanciful for Hunter’s article to say that, after the funeral director expressed a desire to dress and present as a woman, the director’s sex “changed.” An ordinary American at the time of Title VII’s enactment would not have understood sex to be changeable. That is why the director’s counsel conceded in merits briefing that—like it or not—Title VII considers the director to be male, not female.

If accepted, arguments like Hunter’s are a radical reimaging of “sex” in federal law. Text that requires women and men to be treated equally would now require an employer to treat a man as a woman. Text in Title IX would require a school to allow a boy identifying as a girl to take a girl’s place on the women’s basketball team or the winner’s podium. Text in public accommodation laws would require a women’s shelter to allow a man identifying as a woman to sleep in the same room with women who have been raped, trafficked, and abused.

Even Hunter doesn’t suggest that an ordinary American would have understood a prohibition on sex discrimination to mean all that at the time of Title VII’s enactment. And it is precisely why textualists do not try to speculate what may have been in the minds of lawmakers from days gone by.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom  (@AllianceDefends). He is the former solicitor general of Michigan and represented Harris Funeral Homes before the US Supreme court.

Suggested citation: John Bursch, Supreme Court Should Reject New, Anti-Textualist ‘Evidence’ Regarding Title VII’s Prohibition On ‘Sex’ Discrimination, JURIST – Professional Commentary, March 15, 2020, https://www.jurist.org/commentary/2020/03/john-bursch-textualism-titlevii-sex-discrimination

This article was prepared for publication by Gabrielle Wast, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org