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1/17 A thread: Why LGBT employees win in the Title VII cases if a textualist methodology is applied (and even most originalist ones too). #textualism #originalism #LGBT #TitleVII
2/17 Many people seem to assume that the application of textualism and originalism necessarily leads to politically conservative results, and thus would lead to a loss in the LGBT Title VII cases. This is not true.
3/17 Indeed, in the case of the Title VII LGBT rights cases, following a principled textualist methodology would necessarily result in a pro-LGBT result.
4/17 The language of Title VII proscribes discrimination “because of… sex.” Each and every instance of anti-LGBT discrimination is literally “because of… sex.”
5/17 Susan, who is fired for being a woman attracted to women, would not have been fired if she were Mark, a man who is attracted to women. This is literally “because of…sex.”
6/17 John, who is fired for claiming a male identity, while having been assigned the female sex at birth, would not have been fired if he were Mark, who claims a male identity and was assigned the male sex at birth. This too is literally “because of…sex.”
7/17 What about originalism? Don’t LGBT employees lose if sex means what it meant in 1964? In a word: No. Anti-LGBT discrimination is still “because of…sex,” even if a narrow historical definition of “sex” is used (see above).
8/17 Under any truly “textualist” approach—including those that are also originalist in nature—anti-LGBT discrimination is “because of… sex” and thus covered by Title VII.
9/17 It is only discredited, contra-textualist approaches to originalism that lead to an LGBT-exclusionary result. Specifically, one has to be willing to credit historical subjective expectations (that LGBT people wouldn’t be a part of who was protected) above plain text.
10/17 This is inconsistent with Supreme Court precedent, including Oncale v. Sundowner Offshore Services and Pennsylvania Department of Corrections v. Yeskey.
11/17 It is also inconsistent with the views of most modern originalists, who believe that textualism and originalism are compatible methodologies, and have largely disclaimed “hard” versions of “original expectations” originalism.
12/17 To understand why many applications of “original expectations” originalism are not consistent with textualism, it is helpful to disaggregate the reasons why the original public (or Congress) might not have thought something fell within a textually broad law.
13/17 It is not only changes in the meaning of a statute’s words that can explain why actors at the time of enactment might not anticipate a particular application of a textually broad statute.
14/17 Those reasons might include developments in technology, lack of imagination, the stigma attached to a particular group of potential beneficiaries--OR that the words of the statute meant something different. Only the last of these is consistent with a textualist methodology.
15/17 But, even assuming that the word “sex” meant something different to people in 1964 than it does to people today, and adopting that 1964 understanding, anti-LGBT discrimination is still literally “because of…sex.” (See above).
16/17 Thus, it is only an approach to originalism that abandons textualism—an approach most modern originalists would not take—that would lead to an LGBT exclusionary result.
17/17 For more on why textualism compels a pro-LGBT result in the Title VII cases (and originalism does not preclude it), see acslaw.org/acsblog/unders… and ssrn.com/abstract=32444…
18/17 For those interested in even more textualism and Title VII, I respond to the comments on this thread in a separate thread, since I thought they merited a more extended response. Check it out here:
