The courts have been struggling with the meaning of “sex” in Title VII for a couple of decades. Title VII prohibits discrimination based on “sex.” Does that include discrimination based on sexual orientation? In Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), the court tried to walk a tightrope and found that stereotyping a person based on gender was prohibited by  Tile VII, while discrimination based on sexual orientation was not. The problem was that Title VII was passed in 1964. It is clear from the public record that Congress did not intend to protect homosexual persons from discrimination when it passed Title VII. But, society has changed. Now, most folks recognize some protection is needed. And, it just makes sense that “sex” means “sex,” not some forms of sex, while excluding other forms of sex based discrimination.

In Wittmer v. Phillips 66 Co., 2019 WL 458405 (5th Cir. 2/6/2019), the issue returns to the Fifth Circuit. The court chose to follow its precedent from 1979, Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) and hold that Title VII does not apply to sexual orientation. The Court noted that three courts of appeal have found that Title VII does protect discrimination based on sexual orientation. But, the court tried to avoid the subject by finding that the plaintiff did not make out a prima facie case of discrimination anyway. Even with this narrow holding, the panel of three judges produced two concurrences.

Judge Higginbotham concurred saying that the decision need not re-affirm the holding in Blum. Judge Ho wrote a much longer concurrence, arguing that we should look at the meaning of  “sex” in 1964, not what it might mean today. In Judge Ho’s view, “sex” in 1964 meant biologically female or male. To an average person in 1964, “sex” would not include sexual orientation. The judge asks the reader to return to the meaning of “sex” to its meaning in 1964. If Judge Ho relied on some evidence for his view that “sex” meant different things than it does today, he did not indicate what evidence that would be. His concurrence includes no actual evidence that the word has taken on a new meaning, today.

Judge Ho tries to apply “originalism” thinking to his opinion. But, in the end, there needs to be some evidence for his belief that the meaning of “sex” has changed since 1964. It seems to me he is trying too hard to reach a particular result. There is value in using “originalism” when looking at laws written 200 years ago. It has much less utility when the statue being discussed is just some 55 years old. See the decision here.