The meaning of 'sex' and pragmatic judicial interpretation
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Consider this — Congress passes a statute, doesn’t update it, but the words in that statute over time take on new and different meanings. What is a judge supposed to do when faced to choose between the words’ meaning at the time Congress passed the law or the new meaning? Conservatives say look to the original meaning; liberals say look to the modern definition.

The issue, however, is not that black and white. And it’s not new either. But it has recently taken on new significance in a case involving — of all things — the changing definition of “sex.” Not sex in the fun sense (leave it to lawyers to hollow everything out), but “sex” as that word is used in Title VII of the Civil Rights Act of 1964.

Kimberly Hively is a lesbian and open about it. She believed that Ivy Tech Community College discriminated against her because she was a lesbian. She sued under Title VII of the Civil Rights Act of 1964 claiming that the law’s prohibition of discrimination on the basis of “sex” prohibited discrimination on the basis of sexual orientation. Her case was dismissed in 2015 because the word “sex” did not mean “sexual orientation” in 1964, when Title VII was passed. In 2016, a panel of three appeal judges confirmed that the dismissal was proper.         


Hively’s case did not end there, however. It was taken up by the judges of the Chicago-based Seventh Circuit Court of Appeals in a sparingly used procedure called “en banc review” (en banc is French for “in bench”), where all judges of the court rehear a case considered to be of exceptional importance. The full court reinstated Hively’s case. The court’s decision stands as the first federal court in the country to rule that Title VII of the Civil Rights Act of 1964 does in fact prohibit discrimination on the basis of sexual orientation.


The ruling is nothing short of a barn-burner because of the path that the court took to get there. Although some members of the full court did a definitional tango with the word “sex” and “sexual orientation,” the real story — the one that will be debated by the public, lawyers and judges for years to come — is found in the separate opinion written by Judge Richard Posner.

Judge Posner is an intellectual giant, a prolific and influential writer, and a best-selling author who was appointed to the court in 1981 by President Reagan. In that separate opinion, Judge Posner unmasked the real reasons behind the court’s decision in a powerful and thought-provoking analysis of the conundrum presented when a 53-year-old statute uses words that mean something different today.

Judge Posner thought the more “straightforward” reason for reinstating Hively’s case is that the meaning of the word “sex” had changed since 1964 and today includes “sexual orientation.” Faced with this different meaning and no congressional action to change the statute in more than half a century, Judge Posner wrote that judges should “infus(e)” the law with “vitality and significance today” — what he called “judicial interpretive updating.”         

Predictably, the court’s decision was panned by conservatives as yet another example of an out-of-bounds judiciary that has grabbed too much power. On the other side, liberals applauded the decision as sensible and consistent with interpreting statutes according to modern norms and understandings.         

But Judge Posner’s analysis is far too elegant to be relegated to a political punchline. Judge Posner focused on what judges actually do (interpret words using modern definitions) rather than what they say they are doing (implementing the intent of a long-forgotten Congress). And the distinction makes all the difference.         

Of course, the separation of powers commands that our three branches of government remain within their respective domains. Congress makes the laws; the president and the executive branch enforces them; and the courts interpret the meaning of those laws (and the Constitution, of course).         

But Judge Posner sees no incursion into Congress’s sphere of operation by using the modern-day definition of “sex” to include “sexual orientation.” Summoning the 18th-century writings of Blackstone and an early 20-century watershed decision of the venerable Justice Oliver Wendell Holmes, Judge Posner made a seemingly unassailable point: Judges have always invoked “present need and present understanding” when deciding what words mean — whether they be in a statute passed by the Congress or in the Constitution.

Judge Posner teaches us that history is replete with examples of precisely this type of “judicial interpretative updating,” including — most famously — Justice Antonin Scalia’s decision holding that flag burning was protected First Amendment speech even though the framers contemplated no such thing. And he also pointed to the courts’ treatment of the 19th-century competition and monopoly statute, which would be virtually meaningless if not interpreted according to modern economic principles.

Judge Posner did us all a favor with his open and honest assessment of how the court reached its decision. There is nothing scary or unusual about judges who use their modern sensibilities to interpret a statute that has not been changed for more than 50 years.

Law shouldn’t be stuck in the mud. When the legal landscape changes as dramatically as it has over issues of sexual orientation, a court doesn’t cross the constitutional boundary by recognizing the reality of those changes. Judges are not robots programmed to implement a code. They are, instead, human beings that are charged with using their intellect, experience and judgment to ensure that that the laws are implemented fairly and consistently to similarly situated persons.

It will be interesting to see whether other judges — including those on the Supreme Court — will openly embrace Judge Posner’s principle of “interpretive updating,” call it something else, or outright reject it in favor of a different understanding of “sex” and the separation of powers.

And if Hively’s case makes its way to the Supreme Court, we will have a pretty good idea of where Justice Gorsuch comes out on this important question.

Ugo Colella is a trial partner at a D.C. law firm.

The views expressed by contributors are their own and are not the views of The Hill.