Alito, J., dissenting
discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.[1] A more brazen abuse of our authority to interpret statutes is hard to recall.
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time.
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22
- ↑ Section 7(b) of H. R. 5 strikes the term “sex” in 42 U. S. C. §2000e–2 and inserts: “SEX (INCLUDING SEXUAL ORIENTATION AND GENDER IDENTITY).”
