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LGBTQ civil rights case could test textual interpretation of law, says KU professor

Nick Gosnell
Thursday, August 30, 2018

Kansas Attorney General Derek Schmidt has joined with officials from 15 other states in a brief asking the U.S. Supreme Court to declare that transgender workers are not protected under federal workplace anti-discrimination laws codified in the Civil Rights Act of 1964.

The states, led by Nebraska, are asking the court to overturn a decision from the 6th U.S. Circuit Court of Appeals.

“In this particular case, the question is, do we have a case of discrimination because of sex,” said Lumen “Lou” Mulligan, Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University of Kansas. “The technical legal question is what does the term sex mean in this particular statute. The State of Kansas and in the case that’s underlying this, a funeral home employer, interpret sex to mean one’s original biological sex. The lower Court of Appeals and the EEOC and the original plaintiff in the case view discrimination of someone being transgendered as being because of sex.”

The changing of one’s sexual identity from male to female and being fired because of that is discrimination because of sex, according to the current ruling from the Sixth Circuit Court of Appeals. Kansas is asking the U.S. Supreme Court to review the case on the grounds that Congress did not intend for sex to mean anything related to gender transition, as that was not a common topic in 1964 and Congress has not acted to clarify the statute since then.

“Most conservative judges, like a Justice Scalia, would reject that argument,” Mulligan said. “They would reject the argument that you would look at what a legislator subjectively thought about in 1964, but rather would be what a Justice 
Scalia would say, a textualist and what is the plain meaning of this text?”

Now, is it possible that the meaning of words as commonly understood can change quickly enough that statutes become unclear if they have not been rewritten?

“If the Supreme Court takes up this case, I suspect a large portion of the discussion among the justices will be about this sort of philosophies of how one interprets statutes,” said Mulligan. “That will drive a lot of what the answer to that is.”

With that said, the Supreme Court has held previously in other areas that some underpinnings are there no matter how society has changed. For example, the right to bear arms is still constitutional even though modern automatic weapons were not invented yet when the amendment was written, because the words mean what is written, whether what is written still means the same thing or not.

This case, if it is heard by the high court, could reach into many areas and make the Constitution more or less malleable, depending on where a decision may land.

Faculty name: 
Lumen Mulligan