LGBT Discrimination and the Subtractive Moves

24 Pages Posted: 23 Jul 2019 Last revised: 30 Oct 2019

Date Written: July 21, 2019

Abstract

The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The lower courts are split on whether such protection is granted by the plain language of the statute. The judges who reject the discrimination claim argue that the statute does not prohibit activity that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. Their subtractive strategy, an innovation in statutory interpretation, comprises a number of different argumentative moves, with a common aim: to draw upon the cultural context at the time of enactment to avoid an unwelcome implication of a statute’s plain language. This strategy however maximizes judicial discretion and betrays the promise of textualism.

Keywords: Statutory interpretation, Legislation, Title VII, LGBT rights

Suggested Citation

Koppelman, Andrew M., LGBT Discrimination and the Subtractive Moves (July 21, 2019). Northwestern Public Law Research Paper No. 19-19. Available at SSRN: https://ssrn.com/abstract=3424326 or http://dx.doi.org/10.2139/ssrn.3424326

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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