James Ho testifies before the Senate Judiciary Committee during his confirmation hearing to be a judge on the U.S. Court of Appeals for the Fifth Circuit, on Nov. 15, 2017. Photo by Diego Radzinschi.

When Fifth Circuit Judge James Ho wrote the majority opinion affirming a district judge’s dismissal of a transgender employment discrimination claim this week, he also wrote a second separate opinion concurring with himself.

Ho’s unusual concurrence—three times as long as his majority opinion—included a lengthy discourse on maintaining separate bathrooms for the sexes, even though transgender bathroom issues did not figure into the case at hand. He also included a quick English lesson on what the word “sex” really means.

The employment lawsuit against Phillips 66 Co. was filed by Nicole Wittmer, who identifies herself as a transgender woman. A judge in the Southern District of Texas tossed the case after finding Wittmer didn’t present sufficient evidence to support her discrimination claim. Phillips 66 contended it rescinded a job offer after a background check revealed “misrepresentations” and “discrepancies” involving a previous job that were unrelated to her transgender status.

But because Wittmer’s suit contended Title VII of the 1964 Civil Rights Act precluded discrimination against individuals based on their sexual orientation—a contention the trial court endorsed while ruling on other grounds—Ho made clear in his concurrence that he believes Chief Judge Lee Rosenthal of the Southern District of Texas is wrong.

“No one seriously contends that, at the time of enactment, the public meaning and understanding of Title VII included sexual orientation or transgender discrimination,” Ho wrote. “To the contrary, there is a judicial consensus that the public meaning of Title VII in 1964 did not include sexual orientation or transgender discrimination.”

Ho also insisted that that interpretation was “bolstered by four decades of case law.”

“For originalists, the point is not whether members of Congress subjectively intended that result—rather, the point is whether they should have expected it, in light of the words of the statute as they were generally understood at the time,” he concluded.

To bolster his argument, Ho repeatedly cited a 1979 Fifth Circuit ruling, Blum v. Gulf Oil. The appeals court in that case ruled that an employee who claimed he was fired because he was Jewish, male, white and gay was discharged for running a personal business on company time, but noted that discharge for homosexuality is not barred by Title VII.

That led fellow panelist Patrick Higginbotham to skewer Ho in his own concurrence for relying on the 1979 case that was decided “decades before Lawrence v. Texas … invalidated laws criminalizing same-sex sexual conduct.”

“We have never since relied on Blum for its holding that Title VII does not cover sexual orientation discrimination,” Higginbotham wrote. “Neither party, in the district court or this court, relied on or questioned Blum’s continued vitality—so, wisely I think, we do not reach here to resolve Blum’s endurance or the question of whether Title VII today proscribes discrimination against someone because of sexual orientation or transgender status. We do not because we cannot, even with elegant asides.”

Ho’s performance on the bench has been a cause for anxiety among national civil rights groups who fought the former Texas solicitor general’s confirmation after the Trump White House nominated him in 2017. Ho’s public support for his deputy inspector general, Jeff Mateer, who battled ordinances meant to extended legal protection to the LGBT community, became a focus of Ho’s Senate confirmation hearing.

Mateer’s own nomination for a federal trial court ultimately fell apart following revelations that he described transgender children as evidence of “Satan’s plan.”

As an adviser in the U.S. Justice Department’s Office of Legal Counsel shortly after the Sept. 11, 2001, terrorist attacks, Ho wrote memos for Deputy Assistant Attorney General John Yoo that recommended significantly narrowing the scope of what constitutes torture under the Geneva Conventions.

Among Ho’s more potent comments in Tuesday’s ruling:

  • “As a matter of ordinary usage, the term ‘sex,’ of course, does not mean ‘sexual orientation’ or ‘transgender status.’ In common, ordinary usage in 1964—and now, for that matter—the word ‘sex’ means biologically male or female.”
  • “To a fluent speaker of the English language—then and now—the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation.’ The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning.”
  • “Separate bathrooms for men and women are of course ubiquitous in our society. They are prevalent not because they favor one sex over another, but because they protect the privacy of both sexes.”
  • “This case does not simply concern sexual orientation and transgender discrimination. It affects every American who uses the restroom at any restaurant, buys clothes at any department store, or exercises at any gym. What’s more, because federal statutes governing educational institutions employ language indistinguishable from Title VII, this debate also affects virtually every school, college, dormitory, athletic activity, and locker room in America.”
  • “A company that refuses to hire either gay men or lesbian women is not favoring men over women, or vice versa—it is favoring straight men and women over gay men and lesbian women.”
  • “It would defy common sense to imagine that lawmakers labored to assemble a majority coalition to eradicate sexual orientation and transgender discrimination from the workplace—only to select the most oblique formulation they could think of (‘because of sex’) and then hope for the best that courts would understand what they meant.”