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Friday, October 12, 2007

SPLENDA: Representative Frank and Professor Carpenter and Lewis Carroll

Quote from Blawg Review #130:


"Jillian Weiss at Transgender Workplace Diversity takes the gloves off and convincingly weighs in on both the Employment Non-Discrimination Act, a bill that would protect Americans from workplace discrimination based on sexual orientation and gender identity, together with another version of the bill which would strike gender identity from the proposed law's reach, in the eloquently argued "SPLENDA: Representative Frank and Professor Carpenter and Lewis Carroll".
-- Blawg Review #130

The sun was shining on the sea,
Shining with all his might:
He did his very best to make
The billows smooth and bright--
And this was odd, because it was
The middle of the night.

Lewis Carroll, The Walrus and The Carpenter

The Employment Non-Discrimination Act (ENDA) is a bill to prohibit employment discrimination based on sexual orientation, and gender identity or expression. Recently, however, gay politician Barney Frank has put forward a non-inclusive second bill, withdrawing the "gender identity and expression" language because some members of Congress are hesitant about protecting transgender people from discrimination. Representative Frank says more education on this issue is needed. 300 organizations protested, and their protest has resulted in a short reprieve to give the Congressional leadership time to get educated.

Lambda Legal, one of those organizations with a long record of legal advocacy for gay people, has explained that inclusion of "gender expression" is important for gay employees, because much anti-gay discrimination is based on failure to conform to gender norms of masculinity or femininity. Representative Frank took the floor of the United States of Representatives to say their legal analysis is wrong. (Why is the man who complains there has been insufficient education on this issue convincing his peers in the House not to listen to those education efforts?)

This contretemps reminds me of the famous poem by Lewis Carroll, The Walrus and the Carpenter, in which the absurd contradiction becomes the commonplace. In the end, the naive oysters, who believed that the Walrus and the Carpenter were their friends, all wind up getting eaten as the Walrus and the Carpenter shed tears over the sad fate of their friends. Representative Frank says he is our friend, but he is no friend of ours.

A few days ago, I discussed in detail a Volokh Conspiracy post criticizing Lambda Legal's legal analysis in favor of an inclusive ENDA, as opposed to what is now being called SPLENDA, short for Split ENDA, after the popular sugar substitute that tastes like real sugar, but is not. (Nosubstitutes.org is the website that started a petition drive against splitting ENDA.) As demonstrated there, and with all due respect to learned counsel, The Volokh Conspiracy's argument is both wrong on the facts and wrong on the law. Lambda suggested that SPLENDA would not fully protect the gay community. They suggested this because federal courts might interpret the failure to include "gender identity and expression" as a signal that Congress only intended to prohibit firings and refusals to hire grounded on explicitly anti-gay animus.

The author, Dale Carpenter, a graduate of Yale Law School, and a highly-respected law professor at the University of Minnesota,
suggested that courts would never interpret statutes as Lambda suggests, because he has never seen a case in which mere failure to include a phrase in Statute A, such as SPLENDA, is used to interpret Statute B, such as Title VII's prohibition of sex discrimination, which has been interpreted by courts in some cases to include gender expression. "There is no precedent I have ever seen for that style of statutory interpretation," said Professor Carpenter. "That is why Lambda, long a respected voice for its legal acumen and honesty, is on such thin ice." Representative Frank, in his screed on the House floor a few nights ago, used Professor Carpenter's arguments to full effect (I think it's paragraph 62 of the text).

In fact, Professor Carpenter suggested, a bit gratuitously I thought, that I have a "basic misunderstanding" of statutory interpretation. For the record, I would like to suggest that, even though I didn't graduate from Yale and couldn't get hired to teach in a law school (ask me sometime about my interview at AALS - quite entertaining, if you are interested in hearing how transgender lawyers are treated), I understand statutory interpretation quite well, thank you. In fact, I was an editor of my alma mater’s Seton Hall Legislative Journal, and graduated in the top 10% of the class, after which I practiced litigation for a decade (until I went back to work as a secretary – another ‘entertaining’ story about transgender under-employment.)

It is not Lambda which is on thin ice, but Professor Carpenter and Representative Frank.


If one looks at federal Title VII cases involving gender identity, the argument that Title VII sex discrimination does not extend to gender identity are commonplace. See, e.g., Voyles v. Ralph K. Davies Medical Center, 403 F.Supp. 456 (D.C.Cal. 1975); Smith v. Liberty Mutual, 395 F.Supp. 1098 (D.C.Ga. 1975); Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir.1984); and Etsitty v. Utah Tranit Authority, 2005 WL 1505610 (D.Utah Jun 24, 2005). Every one of these cases contains an argument that Congressional nonaction on proposed language in bills (that were not even passed) permits an inference about the intended exclusion of transgender identity (though they called it "transsexualism") from Title VII. They did this via the "plain meaning rule," which requires that a statutory term, such as "sex," be interpreted as its plain meaning, and not a special or technical meaning. They used the failure of Congress to pass a bill on sexual orientation as a demonstration that "sex" meant the distinction between males and female, and did not include the concepts of gender or transgender. It's not right, and, to my mind, misapprehends the plain meaning of "sex" , but they did it, and these cases are still good law.

In Voyles, for example, Judge Spencer Williams argued that Congress understood that “sex” did not include “sex reassignment” because legislation had recently been proposed to add “sexual affection and preference” to Title VII. If Congress understood Title VII to include “sexual affection and preference,” reasoned Judge Williams, then no such legislation would be necessary.
By analogy, then, courts could point to the failure of Congress to pass a bill on gender identity and expression to rule out the argument that Congress intended Title VII "sex discrimination" to include gender expression, gender identity or its related cousin, sex stereotyping.

Professor Carpenter dismissed these concerns. He responded to my analysis by noting that

"It would not be unusual for a court, as in the cases you cite, to claim that the failure to include something in Statute A (Title VII) should influence how we interpret Statute A (Title VII). It is another thing entirely to suggest that (1) mere failure to include a phrase ("gender identity") (2) in the passage of Statute B (a limited ENDA) should be interpreted (3) to overrule two decades of federal court interpretation (sex stereotyping)(4) under Statute A (Title VII). There is no precedent I have ever seen for that style of statutory interpretation. That is why Lambda, long a respected voice for its legal acumen and honesty, is on such thin ice. "


Despite Professor Carpenter having never seen it, this style of statutory interpretation is quite well known. It is an extremely old canon of statutory interpretation, in fact, and so old that it has a Latin name: In Pari Materia. The principle of "in pari materia" means "on the same matter or subject," referring to the idea that statutes on the same subject are to be construed together.

This means, for example, that if the securities laws and the anti-trust laws are regulating the same subject, such as the use of private-wire telephone exchanges on a stock exchange, they will be looked at together, and interpreted so as to understand the meaning of one in accordance with the other, as in Silver v. Stock Exchange, 373 U.S. 341 (1963).

This principle has been applied in Title VII cases with a vengeance. The Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), ERISA and FLSA have all been interpreted in pari materia with Title VII. This means that the words used in one statute is instructive in decisions involving the other, and so are the judicial interpretations. They can all be used to interpret and re-interpret each other. For example, in Mercado v. The Ritz-Carlton, 410 F.3d 41 (1st Cir. 2005), the federal court for the District of Puerto Rico specifically interpreted ADEA based on Title VII . But if Mr. Carpenter were correct, that the words of statute A cannot be used to interpret statute B, this could not have happened. The same thing happened in all of the following cases:



Camacho v. Puerto Rico Ports Authority, 369 F.3d 570 (1st Cir. 2004); Easiley v. Norris, 107 F.Supp.2d 1332 (N.D.Okla. 2000); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424 (1st Cir. 2000); C.A.1.P.R.,2000; Serapion v. Martinez, 119 F.3d 982 (1st Cir. 1997); Monce v. City of San Diego, 895 F.2d 560 (9th Cir. 1990); Parker v. Burnley, 693 F.Supp. 1138 (N.D.Ga. 1988); Denny v. Westfield State College, 669 F.Supp. 1146 (D. Mass 1987); Svenson v. Thomas, 607 F.Supp. 1004 (D.D.C. 1985); Ende v. Board of Regents of Regency Universities, 757 F.2d 176 (7th Cir. 1985); Lopez v. Bulova Watch Co., Inc., 582 F.Supp. 755 (D.R.I. 1984); Arizona Civil Rights Division, Dept. of Law v. Olson, 643 P.2d 723 (Ariz.App. 1982); Cullari v. East-West Gateway Coordinating Council, 457 F.Supp. 335 (E.D.Mo. 1978); Nitterright v. Claytor, 454 F.Supp. 130 (D.D.C. 1978)


In all of those cases, though Professor Carpenter has never seen it, the courts interpreted statute A to reflect upon statute B. Q.E.D.

I can hear the counter-argument coming. "Yes, but the courts of the future will interpret SPLENDA in light of all those favorable interpretations about sex stereotyping from Title VII! So SPLENDA won't hurt gay plaintiffs because no court would dare to overturn those two decades of interpretations!"

Perhaps, but legal principles are often double-edged swords. While you, liberal Professor Carpenter, if ascended to the bench, would do so, and so would Representative Frank and so would I, especially with all of our respect for the principles of precedent and stare decisis, today's Supreme Court is not at all guaranteed to do so. In fact, this whole sex stereotyping cause of action in Title VII, founded on the Price-Waterhouse case decided by a liberal court in 1989, might be overruled by today's textualist Supreme Court who don't think much of 1989 as a year in Supreme Court history and don't give a snap for stare decisis and don't care who knows it.

It would be easy for the Court to reason that the cases which prohibit gay plaintiffs from bringing a gender expression claim are still good, even though the new SPLENDA law would allow a sexual orientation claim. All they have to say is that SPLENDA specifically splits off gender identity and expression, which shows that Price Waterhouse was wrong, or at least using a pre-SPLENDA interpretation. "The Price Waterhouse court interpreted Title VII sex to include gender expression, but, clearly, "gender expression" is now a separate concept from both sex and sexual orientation, as demonstrated by the introduction of separate bills SPLENDA and GENDA," they would glibly state, as we all stand by seething and protesting.

There are a number of courts which have, in fact, made this argument, noting that Price-Waterhouse "sex stereotyping" does not encompass all gender expressions, but only those engaged in by the traditionally gendered. (I realize that makes little sense, but my point is that courts are willing to take such arguments seriously.) See, e.g., Dillon v. Frank, 952 F.2d 403 (6th Cir. 1992); Sweet v. Mulberry Lutheran Home, 2003 WL 21525058 (S.D.Ind. 2003); Oiler v. Winn-Dixie, 2002 WL 31098541 (E.D.La. 2002); and Etsitty v. Utah Transit Authority, 2005 WL 1505610 (D.Utah 2005) (recently affirmed by the 10th Circuit).


How can you, as a public intellectual, lawyer and law professor, advise us, your clients, in all good conscience, that there is no possible way that SPLENDA could be used to re-interpret Title VII and overrule Price-Waterhouse? How can you say that statute A is not used to interpret statute B? The answer is that you can't. That cracking sound you hear? Try not to move, because it's not Lambda Legal on thin ice.



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