“Sex” Is Messy (and Always Has Been): A Textualist Argument for Application of Title VII to Sexual Orientation Discrimination

Authors

• Rebecca J. Ok

Author Details

Rebecca J. Ok, J.D. 2018, Lewis & Clark Law School.

First Page

1361

Abstract

Three recent cases have created a circuit split as to whether Title VII’s prohibition on discrimination “because of . . . sex” applies to sexual orientation discrimination, priming this issue for Supreme Court review. Events suggesting a textualist turn on the Supreme Court mean the advocate must consider whether a textualist argument can be made for application of Title VII to sexual orientation discrimination. Treatment of the topic of sexual orientation by the medical community, the commercial film industry, and the mainstream news media in the 1960s is examined. It is argued that treatment of the topic of sexual orientation when Title VII was enacted shows that the concept we now refer to as “sexual orientation” was implicit in the concept of “sex” as used in Title VII.

Recommended Citation

Rebecca J. Ok, “Sex” Is Messy (and Always Has Been): A Textualist Argument for Application of Title VII to Sexual Orientation Discrimination, 22 Lewis & Clark L. Rev. 1361 (2018).
Available at: https://lawcommons.lclark.edu/lclr/vol22/iss4/7