Katie Eyer’s (Rutgers University) article (See: Eyer, Katie R., Statutory Originalism and LGBT Rights, Wake Forest Law Review) discusses a new argument that has arisen to dispute LGBT Title VII claims: “statutory originalism”:

In the wake of marriage equality, LGBT claims to employment rights have taken center stage in the struggle for LGBT equality.  

Raising claims under federal sex discrimination law, advocates have argued that anti-LGBT discrimination is, necessarily, also sex discrimination under Title VII.  Such claims have seen increasing success in the federal courts as biases against the LGBT community have receded, allowing courts to recognize the textual and doctrinal logic of such sex discrimination claims.  As victories in the lower courts have accumulated, the LGBT employment discrimination issue has increasingly seemed poised to be the next major LGBT equality issue to reach the Supreme Court.

But a new argument has also arisen to dispute LGBT Title VII claims: “statutory originalism.”   

Arguing that the meaning of Title VII ought to be judged by reference to its “original public meaning”—and that the original public in 1964 would not have thought that anti-LGBT discrimination was proscribed—opponents of LGBT inclusion have contended that such sex discrimination claims cannot be allowed.  In making these arguments, opponents have endeavored to sidestep well-established textualist case law that rejects virtually identical arguments when made under the rubric of Congressional expectations or intent.

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