There is one more argument made by Judge Barlow that remains. According to him, the specific use of the word "sex" in Title VII must be restricted to its "plain meaning," thus excluding transgender employees.
Although he does not explicitly state, he is arguing against the legal principle that remedial statutes must be construed broadly and liberally to effectuate its purpose. Since Title VII is seeking to remediate the problem of employment discrimination, its words must be given a broad interpretation to effectuate the broadest protection against employment discrimination. Judge Barlow cowered at the thought. If that legal principle were put into effect here, it would put a fatal crimp in his first argument, that "sex reassignment" does not implicate "sex." If the meaning of "sex" were to be given its broadest and most liberal interpretation, even Judge Barlow would have to admit that it would include "sex reassignment." He craftily dodged, however, the danger of the "liberal interpretation" rule by blithely misconstruing Title VII's purpose and intent.
Here is how he put it:
In the absence of any legislative history indicating a congressional intent to include transsexuals within the language of Title VII, the Court is reluctant to ascribe any import to the term "sex" other than its plain meaning. Accordingly, the Court is satisfied that the facts as alleged fail to state a claim of unlawful job discrimination based on sex.
Here, Judge Barlow argues that the principle of liberal interpretation of remedial statutes to effectuate their purpose does not apply to Paula Grossman, because there is no indication that the purpose of Title VII is to protect transgender employees.
Judge Barlow's argument about legislative history is interesting, but severely flawed. The legal rule that "a remedial statute must be construed broadly and liberally to effectuate its purpose" is not an invitation to narrow the purpose by requiring explicit statements from Congress about all of the various persons who might fall within the categories named in the statute. In this case, the "purpose" of Title VII is to eliminate employment discrimination based on race, sex, religion and national origin. The argument that Congress failed to mention transgender persons as possible plaintiffs does not mean that transgender persons fall outside Title VII's remedial purpose.
Whether Judge Barlow was right or wrong regarding the state of statutory interpretation in 1974, history has surpassed him. Precisely because of judicial narrowing of various terms in civil rights statutes, The Civil Rights Act of 1991 amended Title VII to include a section in the Civil Rights Act that specifically stated that a rule of liberal interpretation must be employed.when interpreting its words. Section 1107(a) states:
All Federal laws protecting the civil rights of persons shall be interpreted consistent with the intent of such laws, and shall be broadly construed to effectuate the purpose of such laws to provide equal opportunity and provide effective remedies.In addition, while Judge Barlow may have been right that when Congress passed Title VII in 1964 that the "plain meaning" of discrimination based on "sex" excluded discrimination based on "sex reassignment," the generally accepted meaning of "sex" today is functionally opposite to the definitions found in the dictionaries of 1964. Courts today generally prefer to read the words as they mean today, and are generally reluctant to look to some special intent that a Congressman may have spewed onto the Congressional Record after a three-martini lunch with lobbyists stuffed with cash in 1964. Therefore, the Supreme Court of the near future is likely to read Judge Barlow's arguments with a skeptical eye, regardless of their political viewpoints on hot button issues like reproductive rights or gay marriage.
