The meaning of sex: Dynamic words, novel applications, and original public meaning
The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Su-preme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimi-nation. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that long-standing statutes are inherently dynamic because they inevitably evolve be-yond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism). Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the fea-tures of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call normative dynamism is the influence of evolving values on the interpretive enterprise, however conceptualized. Linguistic and normative dynamism cre-ate difficulties for originalism, but societal dynamism should not, as original-ists have assumed in other contexts (such as Second Amendment jurisprudence). We explore the relationship among societal, linguistic, and normative dynamism and their implications for original public meaning. Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all the opinions in Bos-tock assumed, and that gender and sexual orientation were essentially non-words in 1964. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) de-note concepts that once could be referred to as sex (on its own and in com-pounds). In turn, today’s gays and lesbians and transgender people are social groups that did not exist (or that existed in a very different form) in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance. Finally, the Court missed an opportunity to acknowledge the importance law can assume in societal and linguistic dynamism: one reason gays and lesbians are a novel social group is that they live in a world where same-sex intimacy is not a crime and the state does not treat homosexuality as psychopathic.
Michigan Law Review
William N. Eskridge Jr. et. al., The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning, 119 Mich. L. Rev. 1503 (2021)