The Meaning of “Sex”

The Supreme Court has granted cert in three cases, a two-to-one circuit court split, to decide the question of what “sex” means under Title VII of the Civil Rights Act of 1964. This is the worst nightmare of gay and transgender advocates, who have worked hard to accomplish through lawfare what they have failed, over and over, to accomplish through legislation. Given their perhaps overly simplistic view of the Court’s partisan players, political hacks when feared, this could spell the end for their efforts to change the meaning of one critical word: Sex.

The framing of the headline question in the New York Times editorial gives away its posture. If it’s a referendum on supporting gay and transgender workers, then it comes out one way. And if it comes out any other way, then it means the Court endorses discrimination against those workers, because surely it would rule to protect them if the Court wasn’t homophobic and transphobic.

The Justice Department sowed confusion in 2017 when it went against the stated position of the Equal Employment Opportunity Commission, the federal agency that oversees enforcement of Title VII, and argued before an appeals court that Congress never intended to extend protections to gay workers. That much may be true; the law as written makes no mention of sexual orientation or transgender status. Which could also explain a separate brief filed in October, in which the department told the Supreme Court that Title VII, as lawmakers wrote it, “does not apply to discrimination against an individual based on his or her gender identity.”

That’s not quite a fair characterization of what happened, as the EEOC, as well as the Department of Education, Office of Civil Rights, decided to flex its bureaucratic fiat to make the leap over the word sex as an immutable, binary characteristic into the realm of gender identity.

There is no serious question that when Congress enacted Title VII, the word “sex” had a clear and narrow meaning, and it didn’t mean sexual orientation or identity. But then, the point of the law was to prohibit discrimination on its basis, and if discrimination was the evil to be faced, is it any different for a person who fails to adhere to the gender stereotypes, whether in dress and behavior or choice of sex partner?

With the passage of time, however, a number of courts, including the Supreme Court, have interpreted the prohibition against sex discrimination generously. Over the past 55 years, thanks to that forward-looking reading of the law, Title VII has addressed harms that Congress never foresaw, such as forbidding sexual harassment and gender stereotyping.

But then, is it proper for the Supreme Court to interpret a law “generously,” which sounds remarkably euphemistic, as if the Times is calling on the Court to legislate where Congress has steadfastly refused to do so. But then, even the noted lefty, Nino Scalia, found room in his heart for a little Supreme finagling.

As Justice Antonin Scalia wrote in a unanimous 1998 ruling in favor of a male worker who was subject to same-sex harassment, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

What’s curious about this trio of cases is that it derives not from any doubt about what Congress intended, but from a concerted decades-long effort to redefine the word “sex.”

But this passage raises an interesting problem, whether the standard by which males and females are determined can, through artful argument, be altered from clear and unambiguous to some new, shifting standard based on the adoption and alteration of words by those seeking change? Can ambiguity be manufactured by deliberately muddying up clear waters?

Out of the blue, sex morphed into gender, and gender into sex, and what was once an immutable characteristic suddenly shifted into whatever anyone chose it to be. “Who is to be master?” as Humpty Dumpty might ask.

The problem for Congress is that the only means by which it can enact a law is words. At the time a law is enacted, it says, using words, what Congress decides to enact. At the time, words have meaning, and so they parse them, argue over them, and select the words that reflect what the law should say. If these words, clear and unambiguous at the time of enactment, can be morphed into vagaries by advocates seeking to change the meaning of a law Congress enacted, how can Congress fashion a law with any certainty that it will be implemented for the purpose enacted?

There is much to be argued against reliance on “congressional intent” as the metric for limiting or expanding the reach of  a statute. First, it’s often impossible to discern, since most of the speechifying is for the purpose of marketing the law to the public, and second because it doesn’t help to figure out why members of Congress voted in favor of the law. Who can say what the otherwise-silent senator from Wyoming had in mind when “yea” emitted from his mouth?

And so we’re left with the words in the statute and their meaning before they became the target of redefinition. What was clear about Title VII was that the list of classifications within its reach was not intended to include every potential victim of discrimination in the workplace. It left out fat people. The disabled aren’t mentioned, but then they were covered later in the Americans with Disabilities Act. And with good reason, since disability raised a plethora of issues that required rules that differed from discrimination on the basis of race.

But neither gay nor transgender is mentioned, and Congress has had ample opportunity to remedy this omission if that’s what it intended. It refused to do so. It wasn’t a matter of neglect, but express refusal to include these classifications under Title VII (or Title IX, for that matter). So the bureaucrats did it anyway, and the circuits are split as to what to make of it, under the rubric of administrative deference.

If the Supreme Court holds that “sex” means what it meant at the time of passage, it will not mean a policy preference that discrimination against gay and transgender people is cool with them, but that legislating, and finding the proper balance, is not its job.

27 thoughts on “The Meaning of “Sex”

  1. DaveL

    Of course, when the statute was enacted, “sex” and “gender” were considered one and the same, both of them simple and binary. Now today we consider them to be different things. But if we consider the statute to prohibit discrimination by sex but not discrimination by gender, then what’s to prevent a company from implementing a single gender workplace, for instance barring all females save those who identify as men, present themselves as men, and in all respects live as men? That would seem, in practice, to deny the overwhelming majority of women the protection intended by lawmakers.

    1. SHG Post author

      The word “gender” wasn’t so much considered the same as sex as it wasn’t considered at all. It existed as a word, but sex was all that was needed and was the word Congress used. Let’s not reinvent history. As for your example, to the limited extent it’s comprehensible, it’s stupid. If sex discrimination is prohibited, then a policy prohibiting females violates it. Gender aside, sex still applies.

      1. REvers

        According to the OED, the first of use gender to refer to sex was in 1963. I strongly suspect the vast majority of Congress (and the rest of the world) had no concept of this meaning in 1964.

        1. Steve Brecher

          From the “Nostalgia Ain’t What It Used To Be Dept.”: prior to the ’60s, gender was purely a grammatical concept denoting “masculine” and “feminine” parts of speech in languages such as French. Those two categories in that usage are mostly arbitrary and unrelated to sex. In French, “cat” and “dog” and “knee” are “masculine” regardless of the sex of the pet or leg owner being discussed, and “street” and “house” and “tooth” are feminine. This is reflected in articles attached to the nouns: French has two words for “the” — “la”, feminine, and “le”, masculine.

          In the American Heritage Dictionary the grammatical meaning of “gender” is still presented first.

      2. DaveL

        The policy I described didn’t prohibit females. It prohibited women. That’s the point. It would allow females, it would merely require them to identify as men, use the men’s bathroom, adhere to men’s standards of grooming or dress, and marry another female if they married at all.

  2. Guitardave

    i swear i remember a time when people didn’t take other peoples what-ever-ness so damn seriously…

  3. Lori Ecker

    “As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” Oncale v. Sundowner

  4. Richard Kopf


    For obvious reasons, I take no position on the substantive question. I trust I don’t need to repeat that admonition. Rather my comment addresses something else to which you allude.

    These series of cases illustrate what happens when Congress and Presidents, through disfunction, indifference or political calculation, punt the ball to the courts. Merits aside, if one cares about the structural integrity (meaning roughly boundary lines) of each branch of our federal government one will await the decisions in these case with heightened interest.

    These cases are far more important than trying to determine the meaning “sex” in a statute enacted when I was in high school. They pose the ever present question federal judges at all levels must answer not infrequently. What is my role? The answer to that question should be as much of a concern for ordinary people as it is for old people in black robes working in a marble palace.

    All the best.


    1. SHG Post author

      I put significant stock into the fact that amendments have been introduced many times to amend Titles VII and IX to include gender orientation and identity as a prohibited classiciation, and have failed to pass. When the legislative branch says no, as it has, advocates then seek solace in other branches. Here, the judicial. In other instances, the executive. Sometimes both.

      It’s trite to say the branches should “stay in their lane,” and the lines between lanes aren’t always clear. But when the failure to achieve the outcome desired from the branch most suited to decide policy gets kicked into another branch, it suggests an end run around the Constitution. That troubles me greatly. Not that I doubt judges have brilliant policy ideas, but that nobody gave them a robe to substitute for the republican will of a representative legislature.

      1. Richard Kopf


        Trite is what I do.

        By the way, I have never known a federal judge who had brilliant policy ideas save for Koz and Posner. I suppose that tells you something, although I am not sure what.

        All the best.


  5. Skink

    “If the Supreme Court holds that ‘sex’ means what it meant at the time of passage, it will not mean a policy preference that discrimination against gay and transgender people is cool with them, but that legislating, and finding the proper balance, is not its job.”

    But it’ll be 6, 2 and even that no one but the lawyers, and only some of us, will understand. All the equal protection-type laws were based on immutable characteristics. Those that can be changed are not immutable. The word is mentioned twice in the EEOC brief, both times for the employer’s belief, but there is no mention of the legal basis this word provides.

    the equal protection-type work I do rarely encounters gender. When it does, it’s of an entirely different type. I also am not thoroughly up on the latest arguments used in these cases. Is immutability as the standard completely lost to the extent it is no longer worthy of mention in a brief? What result if the Court decides gender, in its current manifestation, is not immutable?

    1. SHG Post author

      So here’s what has always troubled me about relying on the “immutable characteristics” argument. It includes religion.

      1. Skink

        I know–if there is a rule that only certain types of religion will be tolerated. But is requiring a man to dress like a man when working the grocery store the same, and has it come to the point where the fundamental basis for an area of law is not mentioned in a brief?

          1. Casual Lurker

            “…just in case you feel the need to confess.”

            It won’t help either of you (or Darth Cheeto), as you can *all* expect “A Very Warm Welcome”…

    1. SHG Post author

      When you started commenting here, I had to fish your comments out of the spam folder. Who did you piss off such that Akismet decided you were a spammer? Or do I just like your musical tastes better than others?

      1. Howl

        Who have I pissed off? I’ve stopped counting. Akismet, Kismet = fate?

        Regarding musical taste, maybe it’s just a variation of “Great Minds Think Alike.”
        Then again, so do mediocre minds.

        Either way, thanks.

        So much music, so little time.

        1. Howl

          P.S. Guitardave is an inspiration.
          Guitar players (present and former) need to stick together. Lord knows there aren’t enough of us in the world.
          Remember, women come and women go, but guitar players always have their pick.

  6. Raccoon Strait

    I like chocolate ice cream best. I also like vanilla and strawberry ice cream, but not as much as I like chocolate. Therefore, I discriminate. What does one do when they are served Neapolitan ice cream?

    That got me thinking about ‘gendered’ or ‘identified’ people in the workplace. Personally I could care less what they do when they are off the job, but what if their job entails customer service, like say in a restaurant? Does one really want to have their waitri’s ‘gender/identity’ thrown in their face along with today’s specials? What would a restaurant manager have to do if the employee decides that they want to have an identity du jour?

    Is there any possibility that either Congress or the Supreme Court could come up with words that would fairly encompass those possibilities, being fair not only to the employee, but the business and their customers? Oh, and the overly sensitive who need to be ameliorated with the same words, of course.

    BTW, we already know you like bacon, and have a fair idea about how you feel about maple and doughnuts as well. The question remains, if you have bacon on your hamburger, how is the doughnut supposed to feel?

  7. Ben

    Congress writes the laws; but the Academy controls the dictionary.

    If the meanings of the words of statutes are not fixed at the time of writing, the Academy will be writing the laws.

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