A series of recent federal court decisions contradict the plain meaning of the language in the statutes they address, at least as that language had been understood and applied for decades. The four decisions are summarized below.
Title IX of the Federal Civil Rights Act generally prohibits discrimination “on the basis of sex” in federally funded education programs.[1] Since its enactment in 1972, title IX has been understood to cover discrimination between males and females based on their biological sex. This is consistent with the virtually universal definition of “sex” as meaning the anatomical and chromosomal features that distinguish males from females. By contrast, “gender” refers to the attitudes, feelings, and behaviors that a given culture typically associates with a person’s biological sex. However, two recent federal appellate court decisions held that “sex” for purposes of title IX actually means preferred gender identity rather than biological sex where the two diverge in any individual: G.G. v. Gloucester County School Board, also known as the Gavin Grimm case, and Whitaker v. Kenosha Unified School District. [2] Both cases dealt with public school bathroom access for transgendered students.
The Americans with Disabilities Act (ADA), enacted in 1990, broadly defines disability discrimination subject to its prohibitions but lists a number of specific exclusions from its coverage. Among them, the act states that “the term ‘disability’ shall not include . . . gender identity disorders not resulting from physical impairments.” Transgendered people are often diagnosed with “gender dysphoria,” also known as “gender identity disorder.”[3] Notwithstanding the explicit exclusion of “gender identity disorders” from ADA coverage, a Pennsylvania federal district court judge held in Blatt v. Cabela’s Retail, Inc. that the plaintiff could claim disability discrimination under the ADA based on transgender status.
Title VII of the federal Civil Rights Act prohibits employment-related discrimination “because of . . . sex.” Like the education-related prohibition in title IX, discussed above, title VII has been understood since its enactment in 1964 to outlaw sex discrimination relating to biological males versus females, or as one court put it, discrimination “against women because they are women or against men because they are men.” Every federal appellate court to address the issue held that title VII does not extend to discrimination based on “sexual orientation.” Nevertheless, in Hivley v. Ivy Tech Community College of Indiana, an 8-3 majority of the full Seventh Circuit Court of Appeals concluded that title VII does indeed cover discrimination based on sexual orientation.
How to explain these decisions?
The first rule of statutory interpretation is to apply the law according to the plain meaning of its text when the statutory language is unambiguous. To determine plain meaning. non-technical words in a statute are given their ordinary meaning as understood when the law was enacted. Dictionary definitions are often used for this purpose. The statutory language in each of the above cases has a plain meaning. In three of the four cases, courts had followed that plain meaning for decades. In the fourth case, the one involving the ADA, the statutory language is so clear in excluding transgender-based claims that the issue apparently had not been litigated before. (The Pennsylvania court cited no precedent either supporting or opposing its conclusion.)
What changed? Not the law. The opinions in the four cases employ various rationales to justify their conclusion that the laws in question actually mean, and have always meant, something quite different from what they had long been understood to mean. The necessary implication is that courts have been misinterpreting these laws for decades and that their pervasive and longstanding judicial errors have only now been discovered. The opinions are not convincing in this regard. Indeed, two of the cases, Grimm and Hivley, feature strong dissents accusing the judges in the majority of blatantly rewriting the law rather than applying the law as written.
The plain meaning of the law has not changed either. One can perhaps envision a situation where the contemporary understanding of words used in a statute has changed to such an extent that the law can no longer be applied in accordance with its original plain meaning. Such a situation would pose a challenge for judges and require a departure from the standard rules of statutory interpretation. However, that’s not the case with the laws involved here. The term “sex” is still defined by reference to the biological differences between males and females just as it was when these laws were first enacted (and, of course, long before then). Likewise, the terms “gender” and “sexual orientation” have not changed their meaning and remain distinct from “sex.”
What has changed quite dramatically since the original enactment of these laws is our cultural mores, specifically, in the context of these cases, attitudes toward LGBT issues. These changing attitudes must account for the outcomes in all four of the cases since there is no other plausible explanation. A remarkable concurring opinion in the Hivley case by Judge Richard Posner, widely regarded as one of the preeminent legal intellects of our time, is strikingly candid in acknowledging this.
Judge Posner’s theory of “judicial interpretive updating”
Judge Posner’s concurring opinion in Hivley begins by conceding that title VII was never meant to cover discrimination based on sexual orientation. He regards it as “well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII.” Nevertheless, he considers it appropriate for judges to “update” the original meaning of title VII based on evolving societal attitudes toward sex. In this regard, he insists that “statutory and constitutional provisions frequently are interpreted [by judges] on the basis of present need and understanding rather than original meaning.” He views this process, which he calls “judicial interpretive updating,” as appropriate when, due to shifts in the political and cultural environment, their original meaning no longer serves contemporary needs.
Judge Posner chides the majority opinion in Hivley for in effect engaging in the fiction that title VII covered sexual orientation discrimination when originally enacted in 1964. He argues that his approach is more “straightforward” than the majority’s:
“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. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.”
He added the caveat that judicial interpretive updating “presupposes a lengthy interval between enactment and (re)interpretation” of the statute’s original meaning. However, he offered no criteria for determining how long the interval must be.
Critique of judicial interpretive updating
Judge Posner certainly deserves high marks for honesty. He owns up to what is essentially legislating from the bench, something judges (particularly those regarded as “liberals”) are often accused of doing but rarely if ever admit. However, the substance of his position raises a host of issues.
First and foremost, by what constitutional authority can courts relieve Congress of its legislative “burden”? The role of the courts is to apply statutes (assuming their constitutionality) as Congress wrote them, not to effectively amend them by reinterpreting (i.e., changing) their stated meaning. Judge Posner’s concept of judicial interpretive updating thus represents a fundamental violation of the constitutional separation of powers between the legislative and judicial branches.
Second, even apart from the obvious constitutional problem, the notion of judicial interpretive updating is undemocratic and elitist. It is of course true that times change and laws need to change with them. But that’s what Congress is for. Why should judges consider themselves better positioned than the people’s elected representatives to decide when statutes have become obsolete and how they should be updated? Likewise, what makes judges think that Congress wants to share its legislative burden with them? The latter question is particularly relevant to the statutes discussed above; legislative efforts to amend them to cover gender identity and sexual orientation have frequently been attempted but never succeeded. It is noteworthy in this regard that each of the decisions featured here resulted from a test case sponsored by interest groups seeking to achieve through litigation policy outcomes that they had thus far been unable to obtain through legislative lobbying.
Third, decisions such as these are responsible for the increasing politicization of the federal judiciary in recent times, a development generally bemoaned by those of all ideological stripes. However, politicization is an inevitable consequence when judges assume the inherently political role of deciding when and how statutes need to change. If judges are to do this, the politicians who appoint them will naturally favor nominees whom they believe will act in accordance with their (the politicians’) political preferences.
Finally, as Judge Posner’s opinion noted, his theory of judicial interpretive updating of statutes is similar to the “living Constitution” theory of constitutional interpretation. Living constitutionalists view the Constitution as a malleable document whose meaning can be revised over time by judges in order to keep pace with evolving societal values and norms. (This theory and the competing “originalism” approach to constitutional interpretation are discussed in more detail here.) The living Constitution theory is subject to the same criticisms as Judge Posner’s judicial interpretive updating. Interestingly, a number of judges and other legal experts openly embrace “judicial interpretive updating” (in the form of living constitutionalism) when it comes to constitutional adjudication. However, Judge Posner is alone (as far as I know) in openly acknowledging and supporting this approach when it comes to interpreting statutes.
[1] Title IX and its implementing regulations allow educational institutions to maintain separate living facilities for the different sexes as well as separate toilet, locker room, and shower facilities on the basis of sex so long as the sex-segregated facilities are comparable. They permit sex-segregation in a number of other situations as well.
[2] The Supreme Court issued a stay to prevent enforcement of the Grimm decision. It later sent the case back to the lower courts without deciding the merits after the Trump administration rescinded guidance issued by the Obama administration on which the decision was largely based.
[3] The 2013 edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines “gender dysphoria” as “a medical condition characterized by clinically significant distress caused by incongruence between a person’s gender identity and the person’s birth-assigned sex.” Before 2013, the condition was known as “gender identity disorder” and that term is still sometimes used. However, the change in terminology was made in order to remove the stigma associated with the former term by getting away from the now disfavored view that transgenderism is a form of mental illness.