While the Supreme Court considers whether anti-gay discrimination and anti-trans discrimination is (or is not) already barred by statute, we can pause over the argument. (My guess is that the Court will find the statute encompasses those protections, a conclusion that is more from the tone of the questions than the substance. Listening made a difference.) One line of argument, the centerpiece of the Petitioners' arguments was that the plain language of the statute covered anti-gay or anti-trans discrimination because such discrimination is built on the sex of the plaintiff. The idea is that one determines whether the discrimination is based on sex by changing the sex of the plaintiff and looking at what the expected conduct would have been. So, discrimination against a gay man dating a gay man is discrimination on the basis of sex because there would be no problem with the plaintiff dating a woman. And that is the plain meaning of the text.
The plain meaning of the text, on this approach, is at least sometimes not plain. In the instant case, it is not controversial that Congress and the President at the time would not have believed, and in fact did not believe, that the statute barred anti-gay discrimination or anti-trans discrimination. That is to say that the plain meaning at the time of enactment did not encompass that discriminatory conduct (but it does now). Plain meaning seems to mean the meaning that virtually everyone accepts for the phrase or words. So the meaning of the statute's plain language goes so far as the meaning accepted by more or less everyone. At the time of enactment? Well, the Supreme Court is gung-ho on originalism, at least for the Constitution. And in recent years has talked a bit along the lines of applying originalism to statutory interpretation as well. (Not all that salient here, but I do not see any convincing story about why the Constitution would be more sunk in the stone of enactment than a statute, but that is for another day.) If there is an originalism equivalent for statutes, then the argument about plain meaning of the anti-discrimination statute should fail. Before the Supreme Court, however, this sort of analysis was shunted off to legislative history, as some sort of alternative to plain text. Perhaps, although I admit that I that attitude is wrong. But, to get back to the point, the import of the Supreme Court adopting the argument that the statute encompasses anti-gay discrimination is that the plain meaning of the text is not the plain meaning of the text except at some particular time, evolving over time into new meanings. Assuming one thinks that the meaning of words and phrases depends on the use and understanding of the linguistic community. Not only though. One could take the plain meaning to be clear reference to plain meaning of the concepts, and the plain meaning then changes over time because the understanding of the (unchanged) concepts changes over time.
I think one conclusion from these considerations is that realism is right.
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