THE MEANING OF SEX: DYNAMIC WORDS, NOVEL APPLICATIONS, AND ORIGINAL PUBLIC MEANING.

AuthorEskridge, William N., Jr.

TABLE OF CONTENTS INTRODUCTION I. A FRAMEWORK FOR UNDERSTANDING ORIGINAL PUBLIC MEANING IN A CHANGING SOCIETY A. Framing the 'Public' of Original Public Meaning 1. The Basic Concept of 'Ordinary Meaning' 2. Public Meaning as an Empirical Question or a Linguistic Question 3. Corpus Linguistics as a Tool that Offers Evidence o Public Meaning B. Framing the 'Meaning' of Original Public Meaning 1. Extensional Versus Intensional Meaning 2. The Advantages of Intensional Meaning for Legal Interpretation II. DEMONSTRATING THE EVOLUTION OF PUBLIC MEANING OVERTIME (THENO-VEHICLES HYPOTHETICAL) A. Difficulties with the Basic No-Vehicles Hypothetical, Involving No Time Gap Between Enactment and Application B. New Things in the World C. Old Things That Have Changed D. New Social, Statutory, or Constitutional Norms E. New Meaning for the Regulatory Term III. CHANGED CIRCUMSTANCES, EVOLVING LANGUAGE, AND TITLE VII A. The Meaning of Sex 1. In the 1960s, Gender and Sexual Orientation Were Uncommon Words 2. In the 1960s, Sex Was Used in Place of Terms Like Gender and Was sometimes used in Ways that Were Not Binary 3. The Meaning of Sex in Bostock B. sex and Societal Dynamism C. The Evolution of Sex and the Dynamic Meaning of Title VII 1. Linguistic Dynamism and Title VII's Evolution 2. "Unexpected" Interpretations and Normative Dynamism CONCLUSION INTRODUCTION

On June 15, 2020, the Roberts Court set off a minor public law explosion when it handed down its decision in Bostock v. Clayton County. (1) The big news was that lesbians, gay men, transgender persons, and other sexual and gender minorities are protected against workplace discrimination under Title VII of the Civil Rights Act of 1964. (2) In less than twenty years, these minorities have moved from being outlaws and psychopaths to in-laws with jobs. (3) For professors of legislation, history, and linguistics, the headline was that all three opinions in the case--the majority opinion for the 6-3 Court and both dissenting opinions--billed themselves as determining the original public meaning (4) of Title VII's text, which from 1964 through the present has told employers they cannot "discriminate against any individual ... because of such individual's ... sex." (5) But how do you get from this language focusing on sex to protection of the two gay men and one transgender woman involved in the cases consolidated in Bostock? This was surely beyond the imagination or even the tolerance of legislators in 1964.

Justice Gorsuch's opinion for the Court focused on the definitions of the key statutory terms--including sex, which he explicitly assumed meant only the biological differences between women and men--and concluded that a man fired for dating men would not have been fired if he were a woman who dated men, and a person identified as male at birth but who now identifies as female would not have been fired had they been identified as female at birth. (6) Thus, the original public meaning of Title VII covered gay and transgender employees. Joined by Justice Thomas, Justice Alito's dissenting opinion framed the public meaning inquiry as an empirical issue: no one reading the statutory language in 1964 would have thought it protected "gays and lesbians" or "transgender persons," who were considered immoral, criminal, or, at best, "mental[ly] disorder[ed]" in that period. (7) Rather, "[t]he possibility that discrimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed the[] minds" of "ordinary Americans." (8) In fact, "Americans ... would have been shocked to learn" that Title VII forbids "discrimination on the basis of 'transgender status' or 'gender identity,'" which are "terms that would have left people [in 1964] scratching their heads." (9) Justice Kavanaugh's dissenting opinion similarly argued that the Court's opinion "rewrites history" by refusing to acknowledge that "an overwhelming body of federal law ... demonstrates that sexual orientation discrimination is distinct from, and not a form of, sex discrimination." (10)

While the justices disagreed about how the public meaning of a legal text should be framed, and what evidence is relevant to its determination, the Bostock Court was unanimous in maintaining that the meanings of all the relevant terms--"discriminate," "because of," "individual," and "sex"--were the same in 2021 as in 1964. Indeed, the notion of "updating" Title VII was anathema to all the justices. One major theme of both dissenting opinions was that the Court was updating Title VII to reflect the current values of society while disingenuously claiming to apply textualist principles, (11) which the Court sternly denied. (12) The thesis of this Article is that the Bostock Court--majority and dissenters alike--overstated the dichotomy between original public meaning and dynamic interpretation. (13)

As we explain in Part I, because super-statutes like Title VII are both transformative and long-standing, interpretive uncertainties arise when they are applied to new, and often unforeseen, circumstances. (14) An original-public-meaning interpreter will also be a dynamic interpreter (even if unconsciously) because statutes must be applied to scenarios that did not exist (and often could not have been imagined) at the time of the statute's creation. In addition, the objects or concepts to which the statute is applied, rather than the statutory language itself, may also evolve over time. Situations like the two described above--where applying the statute today has different outcomes than applying it when it was enacted, even when the original meaning of the statutory language is unchanged--are examples of what we term societal dynamism. Significantly, these scenarios are distinct from circumstances where the meanings of the statutory words themselves evolve over time, as natural language often does. We label this situation linguistic dynamism and argue that it is as inevitable as the earlier scenarios. Finally, because changes in society and law over time produce new social and even constitutional norms, the application of old statutes to current circumstances often implicates what we label normative dynamism. Linguistic and normative dynamism challenge originalism in ways that societal dynamism does not.

In Part II, we address these three scenarios through analysis of a variation of a famous hypothetical discussed in Bostock, an ordinance we shall (for narrative convenience) situate in 1964: "No vehicles shall be allowed in the park." (15) Society since 1964 has evolved in various ways, including technologically. This evolution creates potential interpretive disputes about whether the ordinance applies to mechanisms (such as Segways) that exist in 2021 but did not in 1964. (16) As a matter of language as well as legal logic, a directive using words whose meaning is stable over time is therefore moderately dynamic: it will often apply beyond the expectations of its framers. (17) Similarly, capturing the second type of societal evolution, the no-vehicles prohibition may apply to mechanisms that did exist but may not have been covered in 1964, if those mechanisms have fundamentally changed since 1964. (18) An example might be new motorized wheelchairs that are much bigger, faster, and more sophisticated than those existing in 1964. Application of the earlier law to something that changed so dramatically might often be a fairly uncontroversial example of statutory updating, beyond but not necessarily against the original expectations or meaning.

The two scenarios above demonstrate the dynamic potential of statutory provisions even without implicating situations where the meanings of the statutory terms have changed over time. But language is dynamic. Words may mean today something quite different than in some earlier period. (19) For instance, because so many new motorized conveyances have come on the market since 1964, the meaning of vehicle itself has evolved, evidencing linguistic dynamism. (20) In some of these situations, such as criminal laws where the audience for the statute is itself evolving, compelling reasons may exist for insisting that the statutory language means something different in 2021 than in 1964. (21) A similar phenomenon occurs when the application of old statutes is in tension with new social or constitutional norms. In such situations, the judicial process of accommodating new norms, and thereby producing a dynamic interpretation, is typically unconscious or implicit, although there are no compelling reasons why it must be. (22)

What is our evidence for these assertions? We document our language-based claims with empirical evidence that is vastly superior to the usual dictionary shopping and personal-intuition methods ordinarily deployed by judges. Specifically, we use corpus linguistics to help demonstrate how changes to language and society over time combine to make statutory meaning inevitably dynamic. Corpus linguistics is typically based on "the statistical analysis of data from a corpus," which is "a [machine-readable] compilation of written and transcribed spoken language used in authentic communicative contexts" (such as in newspapers, novels, books, etc.). (23) If performed competently, corpus linguistics meets the scientific standards of generalizability, reliability, and validity. (24) Recently, various academics and judges have argued that corpus linguistics can help judges approach public meaning in a more systematic and objective manner. (25) While some of the leading approaches to corpus linguistics in the legal context have serious shortcomings, as we address, corpus linguistics does have the potential to help judges make better, empirically based judgments about how words are used, both today and historically.

Through the application of linguistic theory, we offer three important contributions to a better understanding of the significance of the...

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