Title VII cases would bypass Congress, impose policy preferences through courts

The structure of our constitutional republic assumes that the right to political representation is not only a human good but a requisite principle of just government. The Framers of our legal system wisely placed all legislative power in the hands of officials who remain electorally accountable to the people, deriving their just powers from the consent of the governed.

Political conflict at the congressional level at times may pose a stumbling block to our democratic process, which aims to faithfully express the will of the people through law. Even still, it more often is evidence of a genuine and spirited clash in the marketplace of ideas. The convulsions inherent to the legislative process, whether in the form of committee-room tirades or Twitter diatribes, are merely symptoms of a healthy representative democracy. And indeed, the most pressing cultural issues seeking remedy through legislation are met, expectedly, by the most fastidious and intense debate.

To this day, the legislative skirmish over the Civil Rights Act of 1964 stands as the longest-running debate in the history of the Senate. Title VII of the act was passed in response to the pertinent cultural issue of its day — the hard-fought struggle for equal treatment of minorities and women in the workplace. The employment provision proclaimed, once and for all, that employers are not to discriminate on the bases of “race, color, religion, sex or national origin.”

Three cases before the U.S. Supreme Court this term now seek to clarify or extend the meaning of Title VII’s employment provision. Employees in Zarda v. Altitude Express and Bostock v. Clayton County allege employer discrimination on the basis of sexual orientation. Alongside these two cases, a claim of discrimination on the basis of gender identity is being brought against the R.G. & G.R. Harris Funeral Homes under the same employment provision of Title VII.

As evidenced in the struggle of the civil rights movement, Title VII was intended to fulfill a distinct and remedial legislative purpose that was responsive to the cultural outcries of its time. In the 60 days of tumultuous debate leading to the passage of the Civil Rights Act, there was no mention of “sexual orientation” or “gender identity.” Since those debates in 1964, there have been more than 50 attempts to amend “sexual orientation” into the statute, and more than a dozen to add the term “gender identity.” While attempts to amend the statute reflect the evolving nature of the public debate and the constantly-shifting will of the people, each of these attempts has failed to be passed in legislation.

The Article III Branch rightly retains exclusive purview over matters of statutory interpretation, but the terms of Title VII are clear and fixed, unless and until they are amended. Even absent separation of powers concerns, the term “sex” in Title VII should not be construed so ambiguously as to include sexual orientation or gender identity. The history and common use of the term demonstrates as much. The roots of the English term “sex” can be traced to the Latin sexus meaning sex or gender, a noun itself derived from the verb secare meaning to cut, divide, or sever. This bilateral understanding of the term has not been lost to etymological history and, over the past six decades, dozens of courts consistently have understood “sex” in Title VII to mean biological sex — a division between males and females. 

Even the Equal Employment Opportunity Commission (EEOC), the executive agency charged with enforcing Title VII, consistently has interpreted “sex” to mean biological sex for at least 40 years, reneging on its position only five years ago.

If the 88th Congress had intended to protect the categories of “sexual orientation” and “gender identity” from discrimination, they should be expected to have expressly enumerated them in the law. The same is true of each congressional session since. The plaintiffs in these three imminent cases now ask the Supreme Court to read into Title VII language that was neither considered at the time of its passage, nor added in the decades following. In doing so, they seek to circumvent the legislative process and impose their policy preferences through the courts. This is a policy question to be considered and resolved by the people’s representatives, not assumed by an unelected panel of nine.

Redefining Title VII by judicial fiat usurps Congress’s duty to legislate and the President’s duty to sign or veto that legislation. This is an obligation entrusted to Congress and the President of the United States by the people. Forty congressmen and eight senators agree, and thus have signed an amicus brief — on which I am listed as counsel — asking the Supreme Court to respect our government’s separation of powers and decline to change the meaning of an unambiguous statute. It is in these democratically-elected officials, not the courts, that American people retain the precious freedom to govern themselves.

Kenneth W. Starr is of counsel to The Lanier Law Firm on a range of appellate matters, legal issues and special interest causes. During his career, he has argued 36 cases before the U.S. Supreme Court, including as U.S. Solicitor General. He served as a United States Circuit Judge for the District of Columbia Circuit, and was appointed as independent counsel for five investigations, including Whitewater, from 1994 to 1999.