Judge Ho crushes it

The moral argument against employment discrimination on the basis of sexual orientation is, I believe, compelling. Accordingly, there’s a plausible argument that such discrimination should be outlawed. However, there is no credible case that Congress has outlawed it.

This hasn’t stopped liberal judges from finding that Congress did so in Title VII of the Civil Rights Act of 1964. Never mind that this Act was passed at a time when no one in Congress would publicly have advocated such a ban. Never mind that the language of the Act refers to “sex” not “sexual orientation” etc.

Liberal judges don’t view their job as following the law, they view it as effectuating social justice. It’s that simple.

There is, therefore, a split among the U.S. courts of appeals as to whether Title VII prohibits discrimination based on sexual orientation, gender identity, etc. It’s a dispute the Supreme Court will have to resolve.

In Wittmer v. Phillips 66 Company, Judge James Ho, whom President Trump appointed to the Fifth Circuit, wrote an opinion that destroys the claim that Title VII protects individuals from employment discrimination based on sexual orientation, gender identity, and the like. Judge Ho’s opinion is a concurrence. The Fifth Circuit ruled that the plaintiff, a transgender woman, could not proceed with her lawsuit because she failed to make out a prima facie case of discrimination and because she did not present a genuine issue of material fact that the company’s stated non-discriminatory reason for not employing her was a pretext for discrimination.

Judge Ho wrote separately to take on the issue of whether Title VII protects the plaintiff at all. His conclusion that it doesn’t was not necessary to decide the case before him. However, the Chai Feldblum EEOC asked the court to address this issue. Judge Ho obliged, with great clarity.

Title VII prohibits employers from “discriminat[ing]” against any individual with respect to employment “because of such individual’s . . . sex.” Judge Ho identified three reasons why this language cannot fairly be deemed to prohibit discrimination based on sexual orientation or gender identification.

First, no one seriously contends — nor can one — that, at the time of enactment, the public meaning and understanding of Title VII included sexual orientation or transgender discrimination. Even those courts that have found Title VII to extend that far don’t make this claim.

Moreover, the original understanding of Title VII held for four decades. During that time, every federal circuit to address the issue rejected attempts to construe Title VII to prohibit discrimination on the basis of either sexual orientation or transgender status.

As Judge Ho says, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”

Second, other established principles of statutory construction undermine the case for finding that Title VII bans discrimination based on sexual orientation or transgender status. The Supreme Court has said that Congress “does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

The Court typically invokes this “elephants in mouseholes” canon when asked to construe an ambiguous statute to reach a matter of great policy consequence. As Judge Ho says, “mo one could seriously dispute the importance of the issues presented in this case, as reflected by the amicus and en banc attention these issues have attracted in other circuits.” For the left, protecting the LGBTQ community from discrimination is at the forefront of the battle for social justice.


[T]his case is about more than sexual orientation or transgender discrimination. If we accept the. . . theory of Title VII [upon which the EEOC relies], what else are employers prohibited from doing?

Employers would also be forbidden from maintaining separate bathrooms and changing rooms for men and women—even though the purpose of separate bathrooms and changing rooms is not favoritism toward
either sex, but respect for the privacy of employees and customers of both sexes. No one to my knowledge has suggested how the [EEOC’s] theory of Title VII could prohibit transgender and sexual orientation discrimination, while still allowing employers to maintain separate bathrooms for men and women. That is presumably because no such limiting principle exists. . . .

So this case does not simply concern sexual orientation and transgender discrimination. It affects every American who uses the restroom at any restaurant, buys clothes at any department store, or exercises at any gym. What’s more, because federal statutes governing educational institutions employ language indistinguishable from Title VII, this debate also affects virtually every school, college, dormitory, athletic activity, and locker room in America.

Clearly, under the elephant’s canon (and under core principles of our democracy), policy issues this significant “must be decided by the people, through their elected representatives in Congress, using clearly understood text—not by judges, using oblique, cryptic, or subtle statutory parsing.”

Third, The traditional interpretation of Title VII is also the only reading that comports with common usage. When construing statutes, courts presume that lawmakers use words in light of their natural and ordinary meaning.

As a matter of ordinary usage, the term “sex” does not mean “sexual orientation” or “transgender status.” As Judge Diane Sykes said in another case on this issue, Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc):

In common, ordinary usage in 1964—and now, for that matter—the word ‘sex’ means biologically male or female . . . . To a fluent speaker of the English language—then and now—the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation.’ The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning.

If Congress had meant to prohibit sexual orientation or transgender discrimination, it would have said so by adding the words “sexual orientation” or “transgender status” or “gender identity” to the list of classifications protected under Title VII. That’s what Congress and other legislative bodies have done when they wanted to protect gays, lesbians and transgender individuals in other contexts.

Judge Ho saves his best for last. He concludes:

Under our Constitution, contentious policy disputes are resolved by the people, through their elected representatives in Congress. And when a particular policy position garners enough support to leap the hurdles of Article I, Section 7, it becomes the law of the land.

For our system to work, however, we must share a common language. When the American people come to a consensus, there must be a way to reduce the agreement to words that we can all understand and accept—both today and in the years to come. We must have confidence that our words will be faithfully construed in the future, consistent with our common understanding.

That confidence is lost if the people undertake to debate difficult issues, accept the daunting task of forging compromise, and then reduce that compromise to legislation—only to have courts surprise the people with rulings that bear no resemblance to our common language. I agree with Judge Lynch that “we need to respect the choices made by Congress about which social problems to address, and how to address them.” Zarda, 883 F.3d at 166 (Lynch, J., dissenting). We should not “impos[e] on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Hively, 853 F.3d at 357 (Posner, J., concurring).

I join in the decision to affirm the district court. But I do so with concern that the people are losing faith in their institutions—and that our courts are giving the people reason to do so.

(Emphasis added) I’m confident that if the Supreme Court decides whether Title VII prohibits discrimination under the basis of sexual orientation and gender identity, it will agree with Judge Ho. The problem is that Chief Justice Roberts and Justice Kavanaugh seem to prefer ducking the issue to resolving it.

Judge Ho’s concluding words are a reminder of how irresponsible their reluctance is.

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