Transgender Identity, Textualism, and the Supreme Court: What is the 'Plain Meaning' of 'Sex' in Title VII of the Civil Rights Act of 1964?

Abstract

Federal courts are split on the question of whether Title VII applies to transgender employees. This article traces the history of changes in the meaning of the word “sex”, arguing that textualist judges, including those on the Supreme Court, should find that sex includes transgender identity.

The article reviews the historical changes in the meaning of the terms "transgender" and "sex." It argues that the meaning of "sex" has come to include "gender identity." It also suggests that the judicial philosophy of "textualism" requires Title VII protection under the rubric of "sex discrimination" for a transgender employee.

Keywords: transgender, Civil Rights Act, Title VII, textualist, textualism, Supreme Court, sex, gender, gender identity, sexual orientation, LGBT, GLBT, gay, lesbian, transsexual