Supreme Court to Decide Whether ‘Sex’ Includes Sexual Orientation

Washington — The beginning of the Supreme Court’s term this week includes momentous oral arguments on Tuesday in two cases that illustrate clashing theories about how statutes should be construed. If properly decided, the cases will nudge Congress to act like a legislative body.

At issue is whether workplace discrimination based on sexual orientation is forbidden by the 1964 Civil Rights Act, which proscribed discrimination because of a person’s “race, color, religion, sex, or national origin.” The question is whether “sex” also proscribes discrimination based on sexual orientation. Tuesday’s arguments will reprise those made in 2017 in another case. Then the U.S. Court of Appeals for the Seventh Circuit held, in effect, that Congress can now be said to have proscribed such discrimination without intending to. Dissenting judges rejected this conclusion because it empowers courts to do what Congress clearly did not do but easily could do.