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119 Mich. L. Rev. 1503 (2020-2021)
The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning

handle is hein.journals/mlr119 and id is 1563 raw text is: THE MEANING OF SEX: DYNAMIC WORDS, NOVEL APPLICATIONS, AND ORIGINAL PUBLIC MEANING William N. Eskridge Jr. Brian G. Slocum** Stefan Th. Griest The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Su- preme Court's recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimi- nation. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that long- standing statutes are inherently dynamic because they inevitably evolve be- yond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The framework depends in part on courts defining 'meaning' properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism). Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the fea- tures of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call normative dynamism is the influence of evolving values on the interpretive * John A. Garver Professor of Jurisprudence, Yale Law School. ** Professor of Law, McGeorge School of Law. t Professor of Linguistics, University of California, Santa Barbara. We appreciate helpful comments on earlier versions of this Article from workshops at the law schools of Brigham Young University, the University of California, Berkeley, the University of Chicago, and Yale University. We are particularly indebted to Aaron Bruhl, Bridget Fahey, Daniel Far- ber, Jonah Gelbach, Mark Gergen, Jonathan Gould, Abbe Gluck, David Grewal, Orin Kerr, Aziz Huq, Shlomo Klapper, Genevieve Lakier, Thomas Lee, Kristin Luker, Richard McAdams, Peter Menell, Frank Partnoy, Dylan Penningroth, Farah Peterson, Russell Robinson, Jonathan Simon, Lawrence Solan, Geoffrey Stone, and Kevin Tobia for useful suggestions and com- ments. 1503

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