Amicus Curiae Brief — R.G. & G.R. Harris Funeral Homes, Inc., Petitioner v. Equal Employment Opportunity Commission, et al.
Supreme Court briefJul 3, 2019
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Nos. 17-1618, 17-1623, 18-107 VIDED
IN THE
Supreme Court of the United States
No. 17-1618
GERALD LYNN BOSTOCK,
—v.—
Petitioner,
CLAYTON COUNTY, GEORGIA,
Respondent.
(Captions continued on inside cover)
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURTS OF APPEALS FOR THE ELEVENTH, SECOND AND SIXTH CIRCUITS
BRIEF FOR AMICI CURIAE CORPUS-LINGUISTICS
SCHOLARS PROFESSORS BRIAN SLOCUM,
STEFAN TH. GRIES, AND LAWRENCE SOLAN
IN SUPPORT OF EMPLOYEES
MELINDA BOTHE
DANNA SELIGMAN
ALLEN & OVERY LLP
1101 New York Avenue, NW
Washington, DC 20005
(202) 683-3800
ANDREW RHYS DAVIES
Counsel of Record
JUSTIN ORMAND
REBECCA DELFINER
GIDEON DUKE-COHAN
CHANGHEE HAN
ALLEN & OVERY LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 610-6300
andrewrhys.davies@allenovery.com
Attorneys for Amici Curiae
NO. 17-1623
ALTITUDE EXPRESS, INC., and RAY MAYNARD,
—v.—
Petitioners,
MELISSA ZARDA and WILLIAM MOORE, JR.,
Co-Independent Executors of the Estate of Donald Zarda,
Respondents.
NO. 18-107
R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
—v.—
Petitioner,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
and AIMEE STEPHENS,
Respondents.
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . .
iii
STATEMENT OF IDENTITY AND
INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
SUMMARY OF THE ARGUMENT . . . . . . . . .
3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
I.
CORPUS LINGUISTICS IS A HIGHLY
EFFECTIVE TOOL FOR DIVINING
THE ORDINARY MEANING OF A
STATUTORY TERM . . . . . . . . . . . . . . .
5
A. Corpus Linguistics Offers a Reliable,
Empirically-Based, Contextual
Guide to the Ordinary Meaning of
Statutory Terms . . . . . . . . . . . . . . . .
7
B. Due to Its Objective, Empirical
Basis, Corpus Linguistics Is
Preferable to—or at Least Provides a
Valuable Supplement to—Other
Commonly Used Methods of
Interpretation . . . . . . . . . . . . . . . . . . .
10
C. Courts Have Recognized That
Corpus Linguistics and the
Methods Underlying It Can Be
Valuable When Interpreting
Statutory Language . . . . . . . . . . . . .
13
ii
II.
IN THE 1960s, THE ORDINARY
MEANING OF “SEX” WAS NOT
LIMITED TO BINARY MAN/
WOMAN DISTINCTIONS . . . . . . . . .
14
A. A Corpus-Linguistics Analysis
Reveals That the Word “Sex” Was
Not Used in Only a Binary
Male/Female Sense in the
1960s . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
B. “Gender” Was Not a CommonlyUsed Word in the 1960s . . . . . . . . .
18
C. In the 1960s, the Word “Sex” Could
Have Encompassed What We Now
Call Gender and Sexual
Orientation . . . . . . . . . . . . . . . . . . . . .
24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
iii
TABLE OF AUTHORITIES
PAGE(S)
Cases
In re Adoption of Baby E.Z.,
266 P.3d 702 (Utah 2011) . . . . . . . . . . . . . . . . . . . 14
Am. Bankers Ass’n v. Nat’l Credit Union
Admin.,
306 F. Supp. 3d 44 (D.D.C. 2018) . . . . . . . . . . . 12
Brady v. Park,
--- P.3d ----, 2019 WL 2052350
(Utah 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Carpenter v. United States,
138 S. Ct. 2206 (2018) . . . . . . . . . . . . . . . . . . . . . . 14
Craig v. Provo City,
389 P.3d 423 (Utah 2016) . . . . . . . . . . . . . . . . . . . 14
Encino Motorcars, LLC v. Navarro,
138 S. Ct. 1134 (2018) . . . . . . . . . . . . . . . . . . . . . . . 5
Fire Ins. Exch. v. Oltmanns,
416 P.3d 1148 (Utah 2018) . . . . . . . . . . . . . . . . . . 14
Hively v. Ivy Tech Cmty. Coll. of Ind.,
853 F.3d 339 (7th Cir. 2017) . . . . . . . . . . . . . . . . . 3
Lucia v. SEC,
138 S. Ct. 2044 (2018) . . . . . . . . . . . . . . . . . . . . . . 14
Muscarello v. United States,
524 U.S. 125 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . 13
People v. Harris,
885 N.W.2d 832 (Mich. 2016) . . . . . . . . . . . . . . . 14
State ex rel. J.M.S.,
280 P.3d 410 (Utah 2011) . . . . . . . . . . . . . . . . . . . 14
iv
Taniguchi v. Kan Pac. Saipan, Ltd.,
566 U.S. 560 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive
Communities Project, Inc.,
135 S. Ct. 2507 (2015) . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Costello,
666 F.3d 1040 (7th Cir. 2012) . . . . . . . . . . . 12, 13
Zarda v. Altitude Express, Inc.,
883 F.3d 100 (2d Cir. 2018) . . . . . . . . . . . . . . . . . . 3
Statutes
42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . . . passim
Other Authorities
Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts
(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Brian G. Slocum, Ordinary Meaning: A Theory
of the Most Fundamental Principle of
Legal Interpretation (2015) . . . . . . . . . . . . . . 6, 10
Christy Borth, Mankind on the Move: The Story
of Highways (1969) . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Congress: Now the Talking Begins, Time,
Feb. 21, 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Corpus of Historical American English,
https://www. english-corpora.org/coha/ (last
visited June 18, 2019) . . . . . . . . . . . . . . . . . . . . . . . 7
v
Douglas Biber, Corpus-Based and Corpus-Driven
Analyses of Language Variation and Use, in
The Oxford Handbook of Linguistic Analysis
159 (Bernd Heine & Heiko Narrog eds.,
2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
The Future of Swearing, Time,
Sept. 15, 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
George Garrett, Do, Lord, Remember Me
(1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Heikki E. S. Mattila, Comparative Legal
Linguistics (Christopher Goddard trans., 2d
ed. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Herman Cappelen, Semantics and Pragmatics:
Some Central Issues, in Context Sensitivity
and Semantic Minimalism: New Essays on
Semantics and Pragmatics (Gerhard Preyer
& Georg Peter eds., 2007) . . . . . . . . . . . . . . . . . . . . 6
Hortense Calisher, Journal from Ellipsia
(1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 26
James J. Brudney & Lawrence Baum, Oasis or
Mirage: The Supreme Court’s Thirst for
Dictionaries in the Rehnquist and Roberts
Eras, 55 Wm. & Mary L. Rev. 483 (2013) . . . 11
James Purdy, Eustace Chisholm and the Works
(1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Jean-Paul Sartre, The Communists and Peace
(1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
John P. Hughes, The Science of Language
(1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Kate Douglas Wiggin, The Eventful Trip of the
Midnight Cry (1895) . . . . . . . . . . . . . . . . . . . . . . . . 25
vi
M. A. K. Halliday & Colin Yallop, Lexicology:
A Short Introduction (2007). . . . . . . . . . . . . . . . . 12
Mark C. Suchman, The Power of Words: A
Comment on Hamann and Vogel’s Evidencebased Jurisprudence Meets Legal
Linguistics—Unlikely Blends Made in
Germany, 2017 BYU L. Rev. 1751 (2018) . . . 11
Milford E. Anness, Song of Metamoris
(1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
The Odd Couple, Time, Nov. 3, 1968 . . . . . . . . . . . 26
Oliver Wendell Holmes, The Theory of Legal
Interpretation, 12 Harv. L. Rev. 417
(1899) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Stefan Th. Gries, Dispersions and Adjusted
Frequencies in Corpora., 13 Int’l J. Corpus
Linguistics 403 (2008) . . . . . . . . . . . . . . . . . . . . . . 21
Stefan Th. Gries, What is Corpus Linguistics?,
3 Language & Linguistics Compass 1225,
1226 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Stephen C. Mouritsen, The Dictionary Is Not a
Fortress: Definitional Fallacies and a CorpusBased Approach to Plain Meaning, 2010
BYU L. Rev. 1915 (2010) . . . . . . . . . . . . . . . . . . . . 12
Thomas R. Lee & Stephen Mouritsen, Judging
Ordinary Meaning, 127 Yale L.J. 788
(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tony McEnery & Andrew Hardie, Corpus
Linguistics: Method, Theory and Practice
(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
William J. Crawford & Eniko Csomay, Doing
Corpus Linguistics (2016) . . . . . . . . . . . . . . . . . . . . 7
1
STATEMENT OF IDENTITY
AND INTEREST 1
This amicus curiae brief is submitted on behalf
of amici Professors Brian Slocum, Stefan Th.
Gries, and Lawrence Solan. Amici are linguists,
professors, and scholars of corpus linguistics.
Professor Brian Slocum is a professor at the
University of the Pacific McGeorge School of
Law. He has published several books, law review
articles, and other peer-reviewed reports about
the application of linguistics to statutory
interpretation.
Professor Stefan Th. Gries is Professor of
Linguistics in the Department of Linguistics at
the University of California, Santa Barbara, and
Chair of English Linguistics at the JustusLiebig-Universität Giessen. Between 2013 and
2017, he was a Visiting Chair of the Centre for
Corpus Approaches to Social Science at
Lancaster University. Between 2007 and 2019,
he was a Visiting Professor at the Linguistic
Society of America Linguistic Institute, and in
the spring semester of 2017, he was the Leibniz
Professor at the Research Academy Leipzig of the
University of Leipzig.
1 Pursuant to Supreme Court Rule 37.6, this brief is filed
with the written consent of all parties. This brief has not been
authored, either in whole or in part, by counsel for any party,
and no person or entity, other than amici curiae or their counsel
has made a monetary contribution to the preparation or
submission of this brief.
2
Professor Lawrence Solan is the Don Forchelli
Professor of Law at Brooklyn Law School and has
also served on the faculty at Yale Law School. He
has published six books on language and the law,
and three articles on the use of corpus linguistics
to interpret legal texts.
Drawing from large corpora of texts collected
from real-world sources, such as books,
magazines, and newspapers, corpus linguistics
provides
information
about
the
public
understanding of the meaning of language in
specific locations at particular times, and
therefore helps determine what the ordinary
meaning of words was at those times. Amici’s
work in the field of corpus linguistics has been
cited in judicial opinions and published in
several legal journals.
Amici’s interests are in the philosophy of
language, and in how corpus linguistics can
assist judges and legal practitioners in reliably
divining the meaning of undefined statutory
language through rigorous, empirically-based
analysis. Amici submit this brief to assist the
Court in understanding the ordinary meaning of
“sex” in Title VII through a corpus linguistics
analysis of how the words “sex” and “gender”
were used, and were not used, in the 1960s when
Title VII was enacted.
3
SUMMARY OF THE ARGUMENT
As relevant here, Title VII of the Civil Rights
Act of 1964 prohibits discrimination “because of
. . . sex.” 42 U.S.C. § 2000e-2(a)(1). Several of the
lower courts that have considered these and
similar cases have opined that the term “sex”
could not have been understood in 1964 to
encompass discrimination against employees for
being lesbian, gay, bisexual, or transgender. 2 The
employees demonstrate in their briefs that they
should prevail even if “sex” as used in Title VII
means only male or female, but Amici
demonstrate below it is not true that “sex” had
such a limited meaning in 1964.
Corpus linguistics is a study of words in their
context. It provides reliable evidence of what
particular words and phrases meant at certain
times and places in history. Corpus linguistics is
more rigorous and therefore more reliable than
other modes of interpretation, such as an
individual jurist’s intuition or even a dictionary.
That is because corpus linguistics analyzes how
words were actually used in everyday settings.
Here, Amici’s corpus-linguistics analysis shows
that “sex” did not have the limited meaning that
the employers and some of the judges below
2 See, e.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 145
(2d Cir. 2018) (Lynch, J., dissenting, joined by Livingston, J.)
(“‘In common, ordinary usage in 1964—and now, for that
matter—the word “sex” means biologically male or female; it
does not also refer to sexual orientation.’”) (quoting Hively v. Ivy
Tech Cmty. Coll. of Ind., 853 F.3d 339, 362-63 (7th Cir. 2017)
(Sykes, J., dissenting) (emphasis in original)).
4
ascribe to it. Rather, in the 1960s, when Title VII
was enacted, the term “sex” encompassed a
diverse set of referents and could have
encompassed the contemporary conceptions of
sexual orientation and transgender status.
5
ARGUMENT
I. CORPUS LINGUISTICS IS A HIGHLY
EFFECTIVE TOOL FOR DIVINING THE
ORDINARY MEANING OF A STATUTORY
TERM
The ordinary-meaning canon dictates that an
undefined statutory term—such as the word
“sex” used in Title VII—be given its ordinary,
everyday
meaning.3
Statutory
interpretation
involves a quest for the meaning a reasonable
person would understand the author to be
conveying by using a given term in a given
context. The question is not what the drafter
subjectively meant to convey through the words
chosen, but rather, “what those words would
mean in the mouth of a normal speaker of
English, using them in the circumstances in
which they were used.” 4
This ordinary-meaning doctrine accords with
the nature and use of a statute—the employment
of natural language to accomplish a statutory
purpose. 5 The basic premise of the ordinarymeaning doctrine is that statutory language
Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1140
(2018); Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566
(2012); see also Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts, 70, 435 (2012).
3
4 See
Oliver Wendell Holmes, The Theory
Interpretation, 12 Harv. L. Rev. 417, 417-18 (1899).
of
Legal
5 See generally Heikki E. S. Mattila, Comparative Legal
Linguistics (Christopher Goddard trans., 2d ed. 2013)
(examining the functions and characteristics of legal language
and the terminology of law).
6
should be interpreted in light of the standards of
communication that apply outside the law. 6 If
successful communication is the goal, as it must
be when a legislature uses statutory language,
that language should be understandable in the
same way by everyone who is subject to the
statute. 7 The ordinary-meaning canon, fundamental to legal interpretation, thus reflects a
presumption that legal language corresponds to
language used in a non-legal context. Statutory
terms should therefore be interpreted by
reference to general principles of language usage
that apply equally outside the law.
Corpus linguistics offers a highly and uniquely
effective tool for divining the ordinary meaning
of statutory words. That is because corpus
linguistics provides the interpreter with context
that is wholly missing when a term is read in
isolation.
A
corpus
linguistics
analysis
determines the context in which a term was
actually used in the relevant place at the
relevant time, and thereby more precisely
informs the meaning of a term than other
methods of statutory interpretation.
6 See Brian G. Slocum, Ordinary Meaning: A Theory of the
Most Fundamental Principle of Legal Interpretation 3 (2015).
7 As Herman Cappelen, Semantics and Pragmatics: Some
Central Issues, in Context Sensitivity and Semantic Minimalism:
New Essays on Semantics and Pragmatics 19 (Gerhard Preyer &
Georg Peter eds., 2007), explains, “[w]hen we articulate rules,
directives, laws, and other action-guiding instructions, we
assume that people, variously situated, can grasp that content
in the same way.”
7
A. Corpus Linguistics Offers a Reliable,
Empirically-Based, Contextual Guide
to the Ordinary Meaning of Statutory
Terms
Corpus linguistics is a scientific discipline at
the
intersection
of
linguistics,
digital
humanities, computer science, and statistics and
information theory. 8 It is a branch of linguistics
based on the statistical analysis of data from a
corpus. 9 A corpus 10 is a compilation of written
and transcribed spoken language used in
authentic communicative contexts, such as in
newspapers or novels, that is placed into a
machine-readable database. The basic premise of
using
corpus
linguistics
as
a
tool
of
interpretation is that by analyzing real examples
of language as it was actually used at a specific
point in time in a particular location, the
researcher can reveal facts about how a certain
term was ordinarily used and understood in
everyday settings. 11
The Corpus of Historical American English
(“COHA”) is the largest structured corpus of
historical American English, and it contains a
compilation of written language as used in the
United States from 1810 to 2000. 12 Corpus
8 See generally William J. Crawford & Eniko Csomay, Doing
Corpus Linguistics 5-11 (2016).
9
See id. at 6-7.
10
The plural of “corpus” is “corpora.”
11
See Crawford & Csomay, supra note 8, at 5-9.
12 See Corpus of Historical American English, https://www.
english-corpora.org/coha/ (last visited June 18, 2019).
8
databases like COHA can be used to research the
use of a term during a specified period of time in
the United States, and the search results provide
the term in context, as it was used by the public
during the specified time period.
For the ordinary meaning of a term to be
understood, the term must in some sense be
generalizable across contexts, and not be shaped
by legal considerations alone. As such, the
meaning of a term should be subject to empirical
verification. Corpus linguistics provides such
empirical verification through a systematic and
neutral method of investigating the meaning of a
given term.
Corpus linguistic analyses are “based on the
evaluation of some kind of frequencies.” 13
Frequency of use is a crucial aspect of what
distinguishes an ordinary meaning from some
meaning that is perhaps conceivable but
unordinary. In other words, frequency is an
indicator of how ordinary a given meaning or
usage of a term is or was. Corpus linguistics can
illustrate the number of senses, or meanings,
that a linguistic expression may have and the
most frequently used meaning. 14 But it is not
merely a matter of counting examples and
pointing to the most frequent usage. Other
important factors provide clues as to what the
13 Stefan Th. Gries, What is Corpus Linguistics?, 3 Language
& Linguistics Compass 1225, 1226 (2009).
14
See id. at 1225, 1228.
9
prototypical meaning of a term was—including
dispersion, which is discussed below. 15
In this way, corpus linguistics brings the
advantages of empirical testing to statutory
interpretation. Corpus analysis is replicable, 16
generalizable, 17 and transparent: any researcher
with Internet access can access an online corpus
and retrieve the same data as the original
researcher. Although analyses of the data and
inferences drawn from them may vary,
application of basic linguistic or mathematical
principles will lead to replicable results.
The increasing availability of scientificallybased research tools, such as corpus linguistics,
has caused some scholars to suggest that these
tools have the potential to transform the exercise
of statutory interpretation into an “empirical”
inquiry. 18 Although legal interpretation will
never be simply an empirical inquiry, some
aspects of interpretation are empirical in nature.
For instance, interpretation cannot proceed
without some consideration of the conventional
The assumption underlying most corpus-based analyses is
the so-called distributional hypothesis, that formal differences
reflect, or correspond to, functional differences (i.e., semantics).
See id. at 1228.
15
Tony McEnery & Andrew Hardie, Corpus Linguistics:
Method, Theory and Practice 66 (2011).
16
17 Douglas Biber, Corpus-Based and Corpus-Driven Analyses
of Language Variation and Use, in The Oxford Handbook of
Linguistic Analysis 159, 159 (Bernd Heine & Heiko Narrog eds.,
2010).
18 See generally Thomas R. Lee & Stephen Mouritsen,
Judging Ordinary Meaning, 127 Yale L.J. 788 (2018).
10
meanings of words. 19 Corpus analysis can provide
this information. That is, corpus analyses can
bring empirical data and objective scientific
methods to bear on difficult questions such as
which sense or meaning of a term is ordinary,
which meaning is possible but infrequently used,
and which meaning is extremely rare. With
corpora from different time periods, this kind of
analysis can also be performed for different
points of time such as when a statute was
enacted, when it was amended, and the present
time.
Corpus linguists engage in both qualitative
and quantitative analyses that follow valid
principles
of
language
research.
Corpus
linguistics research is thus a systematic and
neutral method of researching language usage
and meaning. 20 The methodology employed in
corpus linguistics research allows any results to
be tested and replicated, isolating the analysis
from subjective influences. 21
B. Due to Its Objective, Empirical Basis,
Corpus Linguistics Is Preferable to—or
at Least Provides a Valuable Supplement to—Other Commonly Used
Methods of Interpretation
By providing information about how language
was actually used, corpus linguistics offers a
more objective and reliable interpretation than
other modes of interpretation, such as an
19
See generally Slocum, supra note 6.
20
Biber, supra note 17, at 160.
21
Mcenery & Hardie, supra note 16, at 66.
11
individual jurist’s subjective interpretation, or
the use of dictionaries that provide definitions
devoid of context.
For instance, a reasonable judge may ask what
a “reasonable person” would deem to be the
ordinary meaning of a term. The reasonableperson standard, however, provides dubious
externality when a court purports to apply the
standard without additional external determinants.
Corpus linguistics provides empirical verification of
those external determinants. A corpus linguistics
analysis contextualizes a term by organizing
empirical, replicable evidence about the term’s
meaning and context into a framework that
represents valid linguistic choices. 22
Dictionaries are the primary alternative source
of information about the conventional meaning of
language. Judicial reliance on dictionary
definitions has increased significantly since the
1980s due in part to the judiciary’s increased
focus on linguistic meaning.23 Many judges appear
to believe that dictionaries provide an expert,
neutral, and external standard for the ordinary
meaning of words. Yet, the use of dictionaries to
determine the ordinary meaning of statutory
language may result in inaccuracies.
22 See Mark C. Suchman, The Power of Words: A Comment on
Hamann and Vogel’s Evidence-based Jurisprudence Meets Legal
Linguistics—Unlikely Blends Made in Germany, 2017 BYU L.
Rev. 1751, 1758 (2018).
23 See James J. Brudney & Lawrence Baum, Oasis or Mirage:
The Supreme Court's Thirst for Dictionaries in the Rehnquist
and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 486-87 (2013).
12
A dictionary is a highly abstract construct that
presents words individually and takes them
“away from their common use in their customary
settings.” 24 Although dictionaries can be useful
as a general matter, “the listing of words as a set
of isolated items can be highly misleading if used
as a basis of theorizing about what words and
their meanings are.” 25 In addition, dictionary
compilers are often unable to develop meaningful
orderings of senses, thus intentionally leaving
out the very information that judges have
assumed dictionaries to provide. 26 As a result,
different dictionaries may present different
definitions of the same term, and selection of a
particular dictionary over another might unduly
sway the resulting interpretation. These factors
have caused some courts to conclude that
dictionaries simply do not always offer a helpful
or reliable means to interpret statutory
language. 27
M. A. K. Halliday & Colin Yallop, Lexicology: A Short
Introduction 24-25 (2007).
24
25
Id. at 25.
26 See generally Stephen C. Mouritsen, The Dictionary Is Not
a Fortress: Definitional Fallacies and a Corpus-Based Approach
to Plain Meaning, 2010 BYU L. Rev. 1915 (2010).
See United States v. Costello, 666 F.3d 1040, 1044 (7th Cir.
2012) (“Dictionary definitions are acontextual, whereas the
meaning of sentences depends critically on context, including all
sorts of background understandings.”); see also Am. Bankers
Ass’n v. Nat’l Credit Union Admin., 306 F. Supp. 3d 44, 68
(D.D.C. 2018) (noting that “a term does not necessarily mean the
sum of its parts” and turning to corpus linguistics along with
early 1930s-era judicial opinions—after starting with 1930s era
27
13
Corpus linguistics can help remedy these
shortcomings. Unlike dictionaries that present
acontextual definitions, corpus linguistics allows
for the meaning of a term to be investigated in
relation to other words with which the term cooccurs. Corpus linguistics is a method for
studying language in use, and can thus account
for context in ways that dictionaries cannot.
C. Courts Have Recognized That Corpus
Linguistics and the Methods Underlying
It Can Be Valuable When Interpreting
Statutory Language
Judges have long recognized that empirical
evidence about the meaning of words can have
value when interpreting statutory language. For
instance, this Court and at least one court of
appeals have consulted online resources and
newspaper articles to help identify the ordinary
meaning of various statutory terms. 28 Moreover,
federal and state judges, including individual
members of this Court, have specifically
dictionaries—to determine the meaning of a phrase from a 1934
statute).
28 See, e.g., Muscarello v. United States, 524 U.S. 125, 128–
130 (1998) (considering newspapers’ use of the term “carries” as
evidence of its ordinary meaning as used in the firearms chapter
of the federal criminal code); Costello, 666 F.3d at 1044
(interpreting the statutory term “harboring” by, inter alia,
performing internet searches to identify the common objects of
that term); see also Tex. Dep’t of Hous. & Cmty. Affairs v.
Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2534 & n.2
(2015) (Alito, J., dissenting, joined by Roberts, C.J., Scalia, J.,
and Thomas, J.) (considering a newspaper’s use of the statutory
expression “because of” as evidence of its ordinary meaning).
14
recognized the potential usefulness of corpus
linguistics for that purpose. 29
II. IN THE 1960s,THE ORDINARY MEANING
OF “SEX” WAS NOT LIMITED TO BINARY
MAN/WOMAN DISTINCTIONS
Amici here used the Corpus of Historical
American English (“COHA”) to examine how the
statutory term “sex” was ordinarily used in the
1960s, when Title VII was enacted. That
29 See Carpenter v. United States, 138 S. Ct. 2206, 2239 n.4
(2018) (Thomas, J., dissenting) (citing to the BYU Corpus of
Historical American English and the BYU Corpus of Founding
Era American English, as evidence that the expression
“expectation(s) of privacy” was not in common use at the
founding); Lucia v. SEC, 138 S. Ct. 2044, 2056 (2018) (Thomas,
J., dissenting, joined by Gorsuch, J.) (citing law review article
that performed a corpus-linguistics-based analysis of the
meaning of “Officers of the United States” at the founding);
People v. Harris, 885 N.W.2d 832, 838-39 (Mich. 2016) (citing
the Corpus of Contemporary American English as evidence of
the ordinary meaning of “information” as used in a state
statute); see also id. at 850 n. 14 (Markman, J., concurring in
part and dissenting in part) (relying on the COCA, but
disagreeing on the meaning of the statutory term).
At least two justices of the Utah Supreme Court have
supported the use of corpus linguistics to ascertain the ordinary
meaning of statutory terms. See Brady v. Park, --- P.3d ----, 2019
WL 2052350, at *29 n. 109 (Utah 2019) (Lee, C.J., concurring in
part and dissenting in part); Fire Ins. Exch. v. Oltmanns, 416
P.3d 1148, 1164 & n.9 (Utah 2018) (Durham, J., concurring in
part and concurring in the result); State ex rel. J.M.S., 280 P.3d
410, 419 & n.3 (Utah 2011) (Lee, J., concurring); In re Adoption
of Baby E.Z., 266 P.3d 702, 724 & n.21 (Utah 2011) (Lee, J.,
concurring in part and concurring in the judgment). The full
court has so far been “divided on the viability and utility of this
sort of empirical analysis.” Craig v. Provo City, 389 P.3d 423,
429 & n. 3 (Utah 2016).
15
research demonstrated that “sex” had a broad,
inclusive meaning, and that it was not limited to
a strictly binary or biological meaning.
A. A Corpus-Linguistics Analysis Reveals
That the Word “Sex” Was Not Used in
Only a Binary Male/Female Sense in
the 1960s
Amici performed a corpus-linguistics analysis
of sex 30 as used in the 1960s. That analysis
strongly suggests that, at that time, sex was the
one word that was employed for what today is
expressed with sex, gender, and sexual
orientation.
A concordance for the case-insensitive string
sex in the 1960s portion of COHA returned
approximately three thousand hits. Amici
studied a pseudorandom sample 31 of those hits to
determine the degree to which sex in the 1960s
was used at that time in a strictly binary
male/female classification sense, and the extent
to which sex was used in the 1960s potentially for
a more diverse set of referents. Amici concluded
that, insofar as sex was used to refer to the act of
sex, it was not limited to heterosexual sexual
activity. And insofar as sex was used as a mode
of classification, it was not limited to a binary
male/female classification.
30 Italics are used herein to indicate that a word is being
mentioned (meta-linguistically) as opposed to only being used.
Compare “The word car has 3 letters,” with “I am looking to buy
a new car.”
31 The sample was the first approximately 350 examples from
a randomly re-ordered set of the full 3,000 results.
16
Amici’s analysis assumed that the noun sex is
polysemous with, minimally, two senses:
•
sex 1 references the “act of sex” or “having
sex” (maybe with an intercourse prototype); 32 and
•
sex2 references the classificatory “biological
sex” reading that could theoretically be defined
genetically or chromosomally and that perhaps
has male/female as prototypical categories and
intersex as a special or hybrid type. 33
Amici’s pseudorandom sample included 347
instances of sex: 258 instances of sex 1 and 89
instances of sex 2 . Amici annotated the former
category by reference to the information provided
about the participants in sex 1 . The data showed
that the 258 instances of sex 1 (i.e., the act of sex)
involve:
•
107 cases of sex 1 where the context makes
clear that what is referred to is sexual activity
between a man and a woman;
•
Three instances of sex 1 between two men;
•
One instance of sex 1 between members of
32 Examples (from the data in Amici’s pseudorandom sample)
include “the devout, who must abstain from food, drink, sex from
dawn to sundown,” “some young people use sex as an
instrument of rebellion,” “I’m against using sex as a weapon
under any circumstances,” and compounds such as “sex
education,” “sex crime,” “sex criminals,” “sex drive,” which all
seem to invoke sex1.
33 Examples (from the data in Amici’s pseudorandom sample)
include “some women have more female sex genes than others,”
“a woman could or should find quite as much pleasure with her
own sex as she does with men,” or “twenty gamblers of both
sexes pressed up against the green baize.”
17
the same but unspecified sex;
•
147 instances that did not provide enough
information to decide.
Crucially, although sex between a man and a
woman is the most frequent classifiable use 34 in
the data, it is not the most frequent attested use.
The most frequent attested use reflects the 147
cases that do not specify the sexes of the persons
involved in sex 1 . Thus, the existence of cases
referring to same-sex sex 1 and the large number
of cases in which sex 1 is used without specifying
the sexes of the participants suggest that, even
in the 1960s, the meaning of sex 1 already was not
clearly limited to heterosexual sex. In turn, these
findings do not support an argument that the
term “sex,” as used in the 1960s, should be
interpreted as limited to heterosexual sexual
activity.
As for the 89 instances of sex 2 (i.e., sex used as
a classification), thirty make a clear reference to
a two-way classification of sex (i.e., male versus
female), while 58 are compatible with a more
fine-grained classification because their context
does not provide evidence that only a two-way
classification interpretation was intended. 35 In
other words, although the most frequent
classifiable uses involve a binary classification
(30 of the 89 total), the more frequent kind of
attestations do not commit to a simple binary
classification (59 of the 89 total). This indicates
34 A use is classifiable when it is possible to determine the
word sense from the context in which the word is used.
35
One example was unclear.
18
that sex 2 did not specify a mere binary
interpretation in the 1960s. In turn, these
findings do not support an argument that the
term “sex,” as used in the 1960s, should be
interpreted as limited to a binary male/female
classification.
B. “Gender” Was Not a Commonly-Used
Word in the 1960s
To explore whether the term gender was used
in the 1960s as it is today, and to consider
whether the answer to that question provides an
explanation for the use of the word sex in the
broad sense described immediately above, Amici
performed a case-insensitive search for the string
gender in the 1960s portion of COHA. Amici’s
analysis of the results of that search reveals that
gender was a very rarely used word in the 1960s,
which may well explain why sex had a broad
meaning, encompassing what today we would call
gender.
Tellingly, Amici’s search for gender returned
only 101 hits (as compared with over 3,000 hits
for sex). These hits were extremely unevenly
distributed in this section of the corpus data. The
results are below:
•
Twenty-one of the total 101 instances of
gender were from a single source: a 1965 sciencefiction novel about a genderless alien from a
planet whose inhabitants have no concept of
individuality; 36
•
36
Four instances were from a Jean -Paul
Hortense Calisher, Journal from Ellipsia (1965).
19
Sartre book 37 and four instances were from
a Christy Borth book; 38
•
Two sources with six instances each;
•
Three sources with two instances each;
•
Fifty-four sources with one instance each.
The extremely uneven distribution of gender as
a noun or a verb is even more pronounced than
the above distribution suggests. This is because
the above search actually returns a number of
hits that are arguably irrelevant. Specifically, 72
of the 101 hits reference the verb to engender (47
engendered, 11 engenders, 10 engender, four
engendering).
This means that the instances of gender that
are truly relevant to the current discussion are
only either 29 instances (all matches that do not
instantiate the verb engender) or 26 instances
(all instances of the noun gender). To take the
higher number, 29, the distribution of the corpus
is extremely skewed or clumpy, both in terms of
where they occur and the intended meaning. This
is because of these 29 instances:
•
Twenty are from the novel Journal from
Ellipsia;
•
Two are from TIME magazine; 39
•
Two are from John P. Hughes’s novel The
Science of Language; 40 and
37
Jean-Paul Sartre, The Communists and Peace (1968).
Christy Borth, Mankind on the Move: The Story of
Highways (1969).
38
39
The Future of Swearing, Time, Sept. 15, 1967.
20
•
The remaining instances occur only a
single time in their corpus files.
Moreover, eight of the twenty-nine instances
actually refer to the notion of grammatical
gender (including the above TIME magazine and
The Science of Language examples), which, in
spite of its name, is not at all the same as gender
in the ‘sex/male-vs-female’ sense. One of the
twenty-nine is a proper name and another cannot
be included because it is a TIME magazine
reference to gender in legislation and, thus, gives
rise to the very issues we are discussing. 41
In sum, gender in the relevant sense occurs
only nineteen times in the 1960s portion of
COHA: gender (16), genders (1), genderless (1),
and gendering (1). All but one instance of these
are from the very specialized source mentioned
above, an avant-garde science fiction novel about
genderless aliens.
This assessment of the absolute rarity of the
word gender in the 1960s can be supported both
linguistically and statistically. As for the former,
one can identify words that have the same
frequency in the corpus data of that time period
(although raw-frequency comparisons, while
widespread, are in fact too coarse an approach). 42
40
John P. Hughes, The Science of Language (1962).
41 The Congress: Now the Talking Begins, Time, Feb. 21,
1964.
For example, the following is a list of random words (one
beginning with each letter of the alphabet) that have the same
frequency as the noun gender in the 1960s COHA data (all
homogenized to lower case): avanti, bailing, callas, darien,
explication, fightin, garters, hard-headed, idolized, jailing,
42
21
As for the latter, Amici propose a more advanced
and precise statistical analysis of what is called
dispersion.
Dispersion is a statistic that quantifies the
way a word is distributed in a corpus in a way
that goes far beyond frequency. A word x can be
distributed very evenly in a corpus, which means
that the chance of seeing x in a randomly chosen
part of the corpus (such as a file or a text) is
high. Conversely, x can be distributed very
clumpily, which means that the chance of seeing
it in a randomly chosen part of the corpus (such
as a file or a text) is very low. Examples of the
former include most function words such as
determiners (the, a), prepositions (of, in),
conjunctions (and, or), etc. Examples of the latter
include highly
specialized terms
of art
(potassium permanganate), rare proper names, or
even typos (such as seperate or commisisoner).
The reason dispersion is so important is that it
is a better indicator of word commonness than is
frequency. Words that have the same frequency
can vary significantly in their dispersion, and
dispersion is usually the measure that better
matches native-speaker intuitions. 43 However,
kayano, leprosy, metromedia, nightgowns, oscillation, panamerican, ques, rhubarb, sambuco, three-cornered, untamed,
vassall, widder, x2, yaks, and zarzuela.
43 See generally Stefan Th. Gries, Dispersions and Adjusted
Frequencies in Corpora., 13 Int’l J. Corpus Linguistics 403
(2008); Stefan Th. Gries, Dispersions and Adjusted Frequencies
in Corpora: Further Explorations, in Corpus Linguistic
Applications: Current Studies, New Directions (Stefan Th.
Gries, S. Wulff, M. Davies eds., 2010).
22
until approximately ten years ago, little was
known about dispersion statistics, and their
computation can be extremely labor-intensive
because computing the dispersions of all words in
a corpus can require many hours to complete,
even on clusters of computers.
For the present issue, Amici computed the best
dispersion statistic for all approximately 316,000
different word forms in the 1960s portion of
COHA. This measure is called DP (for Deviation
of Proportions) and theoretically ranges from
nearly zero (words that are extremely evenly
distributed such as to, a, and and in COHA
1960s) to nearly one (words that occur in only a
single part of the corpus, such as sociolinguistics,
janizaries, bayonetting, and mooniness in COHA
1960). The DP-value obtained for even the most
generous version of gender, the twenty-nine cases
that include the linguistic ones as well as the
verbs and the adjective, is 0.9858641. This is a
value that is extremely close to the theoretically
possible maximal DP-value, which is indicative of
extremely uncommon words. 44
This numerical result is strengthened by identifying words
that have the same dispersion values (within rounding
precision) in the corpus data of that time period. The following is
a list of random words (one beginning with each letter of the
alphabet) that have the same dispersion as { gender, genders,
gendering, gendered, genderless} in the 1960s COHA data (all
homogenized to lower case): aky., brilliantp250that, caricatured,
drambuic, emilythen, five-and-ten-cent, grittiness, homeroom,
invitedher, jamaican-based, kllai, lepage, mlf, nierkusii, out-but,
puses, quibbles, revealedp251by, supra- rational, topologically,
unrhetorical, vincentdo, wiic-tv, x/2o, yearth, and zautla. While
there are somewhat ordinary words in this list (caricatured or
44
23
The above results can be visualized as follows.
Figure 1 on the next page is a plot that
represents on the x-axis the frequency of words
(logged to the base of 10) and on the y-axis the
DP-values of the same words. Each word is
represented by a grey point. Words that are more
frequent (on the right) at least tend to be more
evenly dispersed, but the crucial finding is the
red dot, which represents {gender, genders,
gendering, gendered, genderless}. Clearly, the
joint frequency of these expressions is already
quite low, but their dispersion is truly minimal,
indicating that, in American English in the
1960s, gender was an extremely uncommon word.
quibbles), it speaks to the rarity of {gender, genders, gendering,
gendered, genderless} in the 1960s that it is as well dispersed in
the data as are text-processing errors in the corpus:
brilliantp250that (which should be brilliant [p. 250 of the book]
that) or revealedp251by (which should be revealed [p. 251] by).
24
Figure 1:
Frequencies and dispersions of
words in COHA 1960; the red
dot
represents
{gender,
genders, gendering, gendered,
genderless}
C. In the 1960s, the Word “Sex” Could
Have Encompassed What We Now Call
Gender and Sexual Orientation
As shown above, the data for gender in the
1960s is extremely sparse, and the examples
demonstrate that sex in the 1960s subsumed
what now is described as gender. The one use of
gender that was not from Journal from Ellipsia
is the following:
25
(1) although by her superior force she had
overborne his visible reluctance, she, being a
woman, or at all events of the female gender,
could never quite forget that she had done the
wooing. 45
Arguably, one could replace gender in (1) by
sex, as the 1960s component of COHA contains
multiple examples of sex not gender, which when
preceded by female would be semantically
completely compatible with the use of gender in
(1). This is illustrated in (2), (3), and (4).
(2) Masterson himself had fewer sexual
encounters than he boasted and most of these
with the female sex. 46
(3) the uncanny ability of the female sex to see
through the subtlest ruses of men. 47
(4) Ezra had a weak stomach for alcoholic
beverages and that his conquests of the female
sex were largely, although not entirely,
imaginary. 48
Even in the (generally unrepresentative) novel
Journal from Ellipsia, those uses of gender that
are not highly literary (see (5) or (6)) do have
straightforward analogous uses of sex (see (7)
and (8) respectively):
Kate Douglas Wiggin, The Eventful Trip of the Midnight
Cry (1895).
45
46
James Purdy, Eustace Chisholm and the Works (1967).
47
Milford E. Anness, Song of Metamoris 229 (1964).
48
George Garrett, Do, Lord, Remember Me (1965).
26
(5) was it possible that enmity between the
genders here was such that the two never met at
all? 49
(6) character is unmixed with gender. 50
(7) Felix Ungar (Jack Lemmon) is a casualty of
the war between the sexes. 51
(8) ethics and moral standards
combined with sex information. 52
can
be
This analysis confirms that sex in the 1960s
was not limited to a binary man/woman
distinction. Rather, in 1964, sex was broadly
used to cover aspects of sex and sexuality that in
2019 may be represented by different terms, in
particular gender and its variants.
49
Calisher, supra note 36, at 155.
50
Id. at 114.
51
The Odd Couple, Time, Nov. 3, 1968.
52 Joseph N. Bell, Why the Revolt Against Sex Education?,
Good Housekeeping, Nov. 1969.
27
CONCLUSION
Amici curiae Professors Slocum, Gries, and
Solan respectfully submit that this Court should
reject arguments that the term “sex” as used in
the 1960s was limited to a strictly binary or
biological meaning or to heterosexual sex, and
apply a corpus linguistics analysis to ascribe the
broader meaning of the term “sex” that was
actually applicable at that time.
July 3, 2019
Respectfully submitted,
A NDREW R HYS D AVIES
Counsel of Record
J USTIN O RMAND
R EBECCA D ELFINER
G IDEON D UKE -C OHAN
C HANGHEE H AN
A LLEN & O VERY LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 610-6300
andrewrhys.davies@allenovery.com
M ELINDA B OTHE
D ANNA S ELIGMAN
A LLEN & O VERY LLP
1101 New York Avenue, NW
Washington, DC 20005
(202) 683-3800
Attorneys for Amici
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