Last week, the Supreme Court agreed to review three lower court decisions posing the important question whether Title VII of the Civil Rights Act of 1964—which makes it unlawful for an employer or prospective employer “to discriminate against any individual . . . because of such individual’s . . . sex”—thereby forbids discrimination on the basis of sexual orientation and gender identity. There is little doubt that few if any of the members of the Congress that originally enacted the statutory language would have thought it had that effect.
However, as the late Justice Antonin Scalia wrote for the Court in a 1998 Title VII case that applied the statute’s sex discrimination prohibition to other circumstances that its drafters likely did not envision, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” And there are straightforward reasons to think that discrimination based on sexual orientation or gender identity is sex discrimination.
The pending Title VII cases thus pose a test for the Court’s conservative majority. At one point or another and to varying degrees, all of the Court’s conservatives have embraced some version of the so-called textualist approach to statutory interpretation epitomized by Justice Scalia’s observation in the 1998 case, Oncale v. Sundowner Offshore Services, Inc. If they keep faith with their textualist commitment, they will rule in favor of the plaintiffs.