Textualism, Title VII, and “Discrimination . . . Because of Such Individual’s Sex”

At the beginning of the term, the Supreme Court heard oral argument in a trio of cases considering whether Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or transgender status. We are still waiting for the opinions in these cases.

Much commentary on these cases noted that the interpretive method generally favored by the court’s conservatives (textualism) would seem to produce a “liberal” outcome (such discrimination is prohibited by Title VII), whereas consideration of purpose, legislative intent and legislative history would produce the more “conservative” outcome (such discrimination is not prohibited).

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