Newsweek - USA (2019-10-04)

28 NEWSWEEK.COM

unanimous ruling in 1998 authored by Justice Scalia. It was as
much a victory for textualism as for Title VII plaintiffs. In that
case, Oncale v. Sundowner Offshore Services, Inc., a male roust-
about on an oil rig complained of severe sexual harassment from
other males on the rig, including supervisors. The Court ruled
that Title VII barred same-sex sexual harassment, even though
such practices were probably not envisioned by anyone in Con-
gress who voted for the law in 1964. “It is ultimately the provi-
sions of our laws rather than the principal concerns of our leg-
islators by which we are governed,” Scalia wrote. Later that year,
in another unanimous ruling involving a different statute, Scalia
re-enforced his textualist approach: “The fact that a statute can be
applied in situations not expressly anticipated by Congress does
not demonstrate ambiguity. It demonstrates breadth.”
In light of these precedents, judges began to see Title VII as
reaching more broadly than previously assumed. In the early
2000s, three federal appeals courts allowed transgender plaintiffs
to sue based on sexual stereotyping, without deciding whether dis-
crimination based on gender identity itself was forbidden. In 2012,
in an administrative case, the EEOC ruled that Title VII did, in
fact, protect transgender plaintiffs. In late 2014, Attorney General
Eric Holder instructed Justice Department staff to enforce that
interpretation as well. In July 2015, the EEOC decided that Title
VII also banned discrimination on the basis of sexual orientation,
reversing its earlier position. Then, in April 2017, the U.S. Court
of Appeals for the Seventh Circuit, in Chicago, became the first
federal appeals court to rule that Title VII barred discrimination

against homosexuals, overruling an earlier precedent. It found that

bias against the lesbian employee in that case—stemming from

the stereotype that women should date only men—”represents

the ultimate case of failure to conform to the female stereotype.”

“But for” and “Stereotyping”

the lgbtq employees in the three cases now before the

Court make two main “textualist” arguments. One is the stereo-

typing argument just described—that discrimination against

people attracted to the same sex amounts to the “ultimate”

form of sexual stereotyping. The other is known as the “but for”

1964

The Civil Rights Act

was passed. Title VII of

the law makes it

illegal for employers

to discriminate against

an employee “because

of such individual’s

race, color, religion, sex,

or national origin.”

The Path

to the

Supreme

Court’s

LGBTQ

Title VII

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