Judge Posner, Title VII and Why Sexual Orientation Discrimination is Discrimination Based on “Sex”

By Eric Segall

The United States Supreme Court granted certiorari on Monday in two cases raising the issue whether the federal employment discrimination statute, commonly referred to as Title VII, which prohibits employment discrimination based on “sex,” protects gays and lesbians from discrimination based on their sexual orientation. The lower courts have divided on the issue, and there have been numerous judicial opinions discussing the question. These cases raise important and controversial issues of both public policy and statutory interpretation.

The public policy question, which potentially affects millions of Americans and their employers, is whether federal law provides protection for gays and lesbians from discrimination on the basis of their sexual orientation. The statutory interpretation question is how judges should interpret ambiguous terms in old statutes when we know how the drafters would have interpreted those terms, but society has changed dramatically in the period between the adoption of the law and the present controversy.  

The most honest opinion so far on both of these issues was written by (retired) Judge Richard Posner in an en banc concurring opinion for the Seventh Circuit Court of Appeals (that case is not one of the ones the Court decide to hear but raised identical issues).

Posner did not attempt to hide the ball on the statutory interpretation issue. Everyone knows that the Congress that enacted Title VII in 1964 did not think that discrimination based on “sex” covered sexual orientation discrimination. In contrasting his opinion with others that held Title VII covers sexual orientation discrimination, Posner said, “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.”

Reasonable people can disagree about what the proper outcome of these cases should be, but no one can reasonably argue that Congress in 1964 thought it was actually outlawing sexual orientation discrimination. As usual, Posner’s honesty was refreshing. That being the case, why did he reach the conclusion that Title VII’s prohibition on discrimination based on sex does protects gays and lesbians?

He began by describing three methods of statutory interpretation commonly used by judges. The “first and most conventional” method is to decide “the meaning intended by the legislators.” That meaning is often clear, such as with statutes containing numerical standards or clearly defined terms of art. This method, however, rarely tells judges how to decide hard cases that end up in litigation

Posner labeled the second method interpretation by “unexpressed intent.” The classic example is a law saying “no vehicles in the park.” Would such a law apply to ambulances that are needed to rescue a dying person in the park? The answer is obviously no because “the ordinance was not intended to include ambulances among the ‘vehicles’ forbidden to enter the park.” Sometimes, it is easy to guess what legislators would have wanted had they known facts that they did not anticipate.

Third, and “most controversially” sometimes judges give “fresh meaning to a [legislative term] …that infuses the [term] with vitality and significance today.” Posner, one of the most important anti-trust scholars in history, provides as an example the Sherman Antitrust Act, enacted in 1890, “long before there was a sophisticated understanding of the economics of monopoly and competition.” 

             Posner has successfully argued as a judge and an academic that the Act should be “interpreted in conformity to the modern, not the nineteenth century, understanding of the relevant economics. The Act has thus been updated by… judicial interpretation—the form of interpretation that consists of making an old law satisfy modern needs and understandings.” Posner argued in his opinion that this “form of interpretation” is common especially with older statutes and the even older Constitution.

Posner viewed the over-half-a-century-old Title VII, and specifically its prohibition on discrimination based on “sex,” as a law that “invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted.” Posner also emphasized, as was appropriate, that “judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.”

Posner then persuasively explained why, whatever discrimination based on “sex” meant in 1964, it means something different today. He argued that courts have been updating the statutory term “sex” for a long time. Although the term was first used by Congress to denote discrimination in hiring, firing and promotion, eventually the courts recognized that it also prohibited workplaces where sexual harassment took place, even without formal changes in employee status. In Posner’s words, “it has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination.”

Similarly, although it took a long time, courts eventually came to realize that “discrimination based on a woman's failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination,” for courts to realize that the latter is also based on “sex” because when gays and lesbians are discriminated against because of their orientation, they are being told that they cannot do something that a person of the opposite sex can do. In other words, a gay man fired by his employer for being in a relationship with another man would not have been fired if he had been a woman. He was fired, in fact, because of his sex.

Posner relied on Oliver Wendell Holmes, Jr., one of our most famous Supreme Court Justices, to support his arguments. In a famous constitutional law case, Holmes wrote that “when we are dealing with words that also are a constituent act [like the Constitution or a statute] we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. . . . The case before us must be considered in the light of our whole experience and not merely in [light] of what was said a hundred years ago.”

So too with Title VII. As Posner recounted so accurately, “nothing has changed more in the decades since the enactment of the statute than attitudes toward sex….A broader understanding of the word 'sex' in Title VII than the original understanding is thus required …. Failure to adopt it would make the statute anachronistic, just as interpreting the Sherman Act by reference to its nineteenth-century framers' understanding of competition and monopoly would make the Sherman Act anachronistic.”

Of course, it is likely that Justices Gorsuch, Thomas, and Kavanaugh will argue that judges are bound by the original intent or meaning of federal statutes, and therefore only Congress should be allowed to update Title VII to meet modern conditions. But the most popular form of originalism today, public meaning originalism, suggests that judges are bound by what was written, not by the specific intentions of the drafters of the words. In other words, judges today must decide what the word “sex” means in the context of sexual orientation discrimination, not what the people who wrote those words expected the word “sex” to mean in that context.
        Gays and lesbians who are fired, not promoted, or not hired because of their sexual orientation are being punished because of their “sex.” A male who made the same choices that the lesbian in Posner’s case made would not have suffered any employment penalty. She suffered only because she was a woman. In 2019, which is all that matters, that is discrimination based on “sex,” and therefore a violation of federal law, even if no one in 1964 would have reached the same conclusion