bostock v clayton county majority opinion

[30] Following Stephens’s termination, her employer openly acknowledged that he fired Stephens because of her transgender identity, and not her job performance. This can be a sweeping standard. 11478, id., at 803. To the contrary, as we have seen, the employers agree with our understanding of all the statutory language—“discriminate against any individual . An employer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. In Los Angeles Dept. 1825 Scott Betrothed xiii, I am but a poor and neglected woman, feeble both from sex and age. The Court argues that sexual orientation and gender identity are “inextricably bound up with sex,” ante, at 10, and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules,” ante, at 17. So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. Political groups distinguish the two. A second prominent argument made in support of the result that the Court now reaches analogizes discrimination against gays and lesbians to discrimination against a person who is married to or has an intimate relationship with a person of a different race. First, Justice Gorsuch set out to determine the “ordinary public meaning” of the statute’s text at the time of its enactment in 1964. xix. 1730 Swift Let. . Ms. Stephens’s case has a more complex procedural history, but in the end the Sixth Circuit reached a decision along the same lines as the Second Circuit’s, holding that Title VII bars employers from firing employees because of their transgender status. . Cf. See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. To be sure, as Judge Lynch appropriately recognized, it is “understandable” that those seeking legal protection for gay people “search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. See, e.g., Barnes v. Train, 1974 WL 10628, *1 (D DC, Aug. 9, 1974). So too, regardless of what the intentions of the drafters might have been, the ordinary meaning of the law demonstrates that harassing an employee because of her sex is discriminating against the employee because of her sex with respect to the “terms, conditions, or privileges of employment,” as this Court rightly concluded. See post, at 9–12 (Alito, J., dissenting); post, at 12–13 (Kavanaugh, J., dissenting). Id., at 711. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime. Sandys Serm. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. rare. And the Court has likewise stressed that we may not read “a specific concept into general words when precise language in other statutes reveals that Congress knew how to identify that concept.” Eskridge, Interpreting Law, at 415; see University of Tex. Cf. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. §10:5–12(a) (West Supp. . So this may appear to leave us with a battle of labels. The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court “will trigger open conflict with faith-. 1895 Crackanthorpe in 19th Cent. Gorsuch wrote the majority opinion with Kavanaugh writing a dissent and Alito and Thomas writing another dissent. Poesie III. But to reiterate, that approach to statutory interpretation is fundamentally flawed. [37] Unsurprisingly, Justice Gorsuch’s opinion was rooted in textualist jurisprudence. That distinguishes these cases from countless others where Title VII has nothing to say. (prohibiting discrimination because of “sex[,] . the employment practices of the Federal Government generally, and of individual agencies.” 5 CFR §§300.101, 300.102 (2019). It is written in starkly broad terms. See ante, at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the decision”); ante, at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”); ante, at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer . The Court’s decision was fairly surprising, as the Justices divided 6-3 in favor of the employees, with conservative Justice Neil Gorsuch authoring the opinion. Marcus, Nancy C. | November 1, 2020 The Supreme Court’s Bostock v. Clayton County opinion, affirming that Title VII’s sex discrimination protections extend to “gay and transgender” employees, is an opinion emphatically grounded in a textualism-based analysis. Ann., Tit. [1] 42 U.S.C. The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary meaning. S. 815, 113th Cong., 1st Sess. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. discharge any individual, or otherwise . 600–443, §I(2) (April 10, 1953) (similar). . . sexed, sexing, sexes. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. No, it doesn’t. . The Court declined to interpret “facilitating” a drug distribution crime in a way that would cover purchasing drugs, because the “literal sweep of ‘facilitate’ sits uncomfortably with common usage.” Abuelhawa v. United States, 556 U. S. 816, 820 (2009). Ante, at 28 (quoting 523 U. S., at 79). 1382 Wyclif Gen. vi. For reasons already discussed, see Part I–A, supra, it is not. Justice Gorsuch appears to have written Bostock with a broad audience in mind. 3. a The sphere of behavior dominated by the relations between male and female. 2) A 3 Euen as Hares change shape and sex, some say Once euery yeare. The Court apparently finds these arguments unpersuasive, and so do I, but for the sake of completeness, I will address them briefly. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning. . Chisom v. Roemer, 501 U. S. 380, 410 (1991) (dissenting opinion). Employment by religious organizations. 210. So if an employer discriminates because of sex, the employer is liable no matter what it calls its conduct, but if the employer’s conduct is not sex discrimination, the statute does not apply. But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what causation standard applied. . As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. Dictionary definitions are valuable because they are evidence of what people at the time of a statute’s enactment would have understood its words to mean. A model employee arrives and introduces a manager to Susan, the employee’s wife. The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Money eds. 47 Much less can I imagine, why a Jewish Sex (whether of Pharisees or Saducees) should be represented, as [etc.]. 358 So are all sexes and sorts of people called vpon. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. That seems implausible. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment. 17, 2020) (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little, No. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . 6. to have sex, to engage in sexual intercourse. See, e.g., 18 U. S. C. §249(a)(2)(A) (hate crimes) (enacted 2009); 34 U. S. C. §12291(b)(13)(A) (certain federally funded programs) (enacted 2013). By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law. 2:18–cv–00091 (MD Ala., July 25, 2018) (change of gender on driver’s licenses); Whitaker, 858 F. 3d, at 1054 (school policy requiring students to use the bathroom that corresponds to the sex on birth certificate); Keohane v. Florida Dept. Likely not much. The Court’s opinion is like a pirate ship. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women. . So courts should not read that specific concept into the general words “discriminate because of sex.” We cannot close our eyes to the indisputable fact that Congress—for several decades in a large number of statutes—has identified sex discrimination and sexual orientation discrimination as two distinct categories. This employer would be applying the same rule to all its employees regardless of their race. Judges must take care to follow ordinary meaning “when two words combine to produce a meaning that is not the mechanical composition of the two words separately.” Eskridge, Interpreting Law, at 62. §659A.030(1) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc. ); N. M. Stat. . of Ed., 858 F. 3d 1034, 1049 (CA7 2017); G. G. v. Gloucester Cty. 9 See n. 6, supra; see also Sadock, supra, at 2063 (“transgender” refers to “any individual who identifies with and adopts the gender role of a member of the other biological sex”). If the applicant was unfamiliar with the term “homosexual,” the applicant would have to look it up or ask what the term means. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. School Bd., 822 F. 3d 709, 715 (CA4 2016), vacated and remanded, 580 U. S. ___ (2017); Adams v. School Bd. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Likewise, in Evans v. Ga. Reg’l Hosp.,[7] the Eleventh Circuit, relying on Blum, rejected the notion that sexual orientation fell within the protections of Title VII. There is no ambiguity or vagueness here.” Hively, 853 F. 3d, at 363 (dissenting opinion). For example, in Blum v. Gulf Oil Corp.,[6] the Fifth Circuit held that Title VII does not protect an individual from discrimination on the basis of sexual orientation. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. When she got the job, Ms. Stephens presented as a male. To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence. selection of modifiers, referents, or grammatical forms”). Order No. Although Justice Gorsuch has likely not shifted to the left of the Court, his opinion in Bostock has nonetheless made a meaningful contribution to the rights of the LGBTQ community. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. 4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U. S. C. §2000e–2 and inserts: “SEX (INCLUDING SEXUAL ORIENTATION AND GENDER IDENTITY).”. 24 In 1981, after achieving home rule, the District attempted to decriminalize sodomy, see D. C. Act No. For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. Housing. In Philips, the employer treated women with young children less favorably than men with young children. . based employment practices of numerous churches, synagogues, mosques, and other religious institutions.”51 They argue that “[r]eligious organizations need employees who actually live the faith,”52 and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message. 2018); Hively v. Ivy Tech Cmty. 2a. It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. . Do we look only at the moment the statute was enacted, or do we allow some time for the implications of a new statute to be worked out? [50] As discussed above, Pamela Karlan played directly into Justice Gorsuch’s wheelhouse with arguments rooted in the express language of Title VII. Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants. A prohibition on ‘race-mixing’ was . So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Ante, at 9–10. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. 59 See 47 N. Y. C. R. R. §2–06(a) (2020) (stating that a “deliberate refusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. Admin. . 1768 Goldsm. 2:17–cv–00050 (D NJ, Jan. 5, 2017) (transgender man claims discrimination under the ACA because a Catholic hospital refused to allow a surgeon to perform a hysterectomy). of Isles VI. Would even the most ardent “purposivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “principal concerns”? 1526 Pilgr. The Court observes that “[t]he people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms,” ante, at 24, but it has no qualms about disregarding over 50 years of uniform judicial interpretation of Title VII’s plain text. b. Most notably, the statute prohibits employers from taking certain actions “because of ” sex. 29 American Psychological Association, 49 Monitor on Psychology, at 32. Refl. It also prohibited a student’s exclusion from any state university department “on account of sex.” Art. An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. 1838 Murray’s Hand-bk. Argued October 8, 2019—Decided June 15, 2020, heterothallic, homothallic; fertilization, meio-sis, mendel’s law; freemartin, hermaphrodite, intersex, heterothallic, homothallic; fertilization, meiosis, mendel’s law; freemartin, hermaphrodite, intersex. See Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339 (2017) (en banc). of Justice & Dept. Or as Professor Manning put it, proper statutory interpretation asks “how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context. Accepting this point, too, for argument’s sake, the question becomes: What did “discriminate” mean in 1964? 5. genitalia. Exec. 1760-2 Goldsm. To be sure, the statute’s application in these cases reaches “beyond the principal evil” legislators may have intended or expected to address. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. used with up . 65 An elegant degree of plumpness peculiar to the skin of the softer sex. At that time, the three Courts of Appeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orientation,38 two other Circuits had endorsed that interpretation in dicta,39 and no Court of Appeals had held otherwise. The proposed bills are telling not because they are relevant to congressional intent regarding Title VII. Co., 608 F. 2d 327, 329–330 (CA9 1979); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam). Sexual intercourse. See supra, at 48. As long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment decisions.” Ibid. . The most prominent example of a provision using this language was the Nineteenth Amendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. Conjugation, or fertilization (union of germplasm of two individuals), a process evidently of great but not readily explainable importance in the perpetuation of most organisms, seems to be the function of differentiation of sex, which occurs in nearly all organisms at least at some stage in their life history. Several lower court cases have held that discrimination on this ground violates Title VII. How this hypothetical proves the Court’s point is a mystery. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of that is at issue here. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). 39 (1991) (prohibiting public-employment discrimination because of “sexual orientation”); Ohio Exec. Maybe the traditional and simple but-for causation test should apply in all other Title VII cases, but it just doesn’t work when it comes to cases involving homosexual and transgender employees. 2) 49 There be sexes of hearbes .. namely, the Male or Female. –tr.v. Importantly, an overwhelming body of federal law reflects and reinforces the ordinary meaning and demonstrates that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. While this student had placed “eighth out of nine male athletes in the 400 meter hurdles the year before, the student won the women’s competition by over a second and a half––a time that had garnered tenth place in the men’s conference meet just three years before.” Id., at 15.A transgender male—i.e., a biological female who was in the process of transitioning to male and actively taking testosterone injections––won the Texas girls’ state championship in high school wrestling in 2017. Gloucester. 87, 93 (2004) (suggesting the term was first introduced at 23rd International Psycho-Analytical Congress in Stockholm in 1963); J. Meyerowitz, How Sex Changed 213 (2002) (referring to founding of “Gender Identity Research Clinic” at UCLA in 1962). Not the text of Title VII. v. Murphy, 548 U. S. 291, 297–298 (2006); Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341–342 (2005); Custis v. United States, 511 U. S. 485, 491–493 (1994); West Virginia Univ. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender. A “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes. 7 The EEOC first held that “discrimination against a transgender individual because that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012 WL 1435995, *11 (Apr. 119 There may be a kind of sex in the very soul. But is that really true? The bills did not define sex discrimination to encompass sexual orientation discrimination.6. After all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be? By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. On occasion, it can be difficult for judges to assess ordinary meaning. Take this Court’s encounter with the Americans with Disabilities Act’s directive that no “ ‘public entity’ ” can discriminate against any “ ‘qualified individual with a disability.’ ” Pennsylvania Dept. And because this applicant would have to take into account his or her sex and that of the persons to whom he or she is sexually attracted to answer the question, it follows, the Court reasons, that an employer could not reject this applicant without taking the applicant’s sex into account. sex,” Art. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were understood to mean at that time. So what changed from the situation only a few years ago when 30 out of 30 federal judges had agreed on this question? Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrimination because of sex. The lessons these cases hold for ours are by now familiar. And less than a decade after Title VII’s passage, during debates over the Equal Rights Amendment, others counseled that its language—which was strikingly similar to Title VII’s—might also protect homosexuals from discrimination. of newly hatched chicks. 56 See, e.g., Amended Complaint in Toomey v. Arizona, No. ); Del. & Tel. trans. sexed, sex-ing, sex-es 1. . This lesson is obviously true but proves nothing. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188–195 (2012). ); Exec. For phrases as well as terms, the “linchpin of statutory interpretation is ordinary meaning, for that is going to be most accessible to the citizenry desirous of following the law and to the legislators and their staffs drafting the legal terms of the plans launched by statutes and to the administrators and judges implementing the statutory plan.” Eskridge, Interpreting Law, at 81; see Scalia, A Matter of Interpretation, at 17. Over time, though, the breadth of the statutory language proved too difficult to deny. The other issue was whether that racial nondiscrimination principle applied to public schools, even though public schools did not exist in any comparable form in 1868. (prohibiting discrimination because of “sex (including pregnancy), sexual orientation,” etc. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment. an exception to) the ordinary meaning rule.” W. Eskridge, Interpreting Law 72 (2016). . In another type of sex determination, as in certain moths and possibly in the fowl, the female produces two kinds of eggs, the male only one kind of sperm. The Court’s arguments are squarely contrary to the statutory text. Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985). ); N. H. Rev. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Prior to the Court’s Bostock decision, a number of circuits had already ruled on the matter of sexual orientation under Title VII. 2 See, e.g., H. R. 2015, 110th Cong., 1st Sess. 1710-11 Swift Jrnl. iii. But that assertion is tough to accept. ii, He has a strange penchant to grow fond of me, in spite of his aversion to the sex. Federal law distinguishes the two. ¶ 4. To reiterate Justice Scalia’s caution, that approach misses the forest for the trees. by itself does not constitute a psychiatric disorder”); see also APA, Diagnostic and Statistical Manual of Mental Disorders 281–282 (3d ed. . Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. Ibid. The employers’ argument proceeds in two stages. Converted into sex discrimination in federal employment over the last few years ago when 30 out of hand its is... Just what “ sex, ” defined as including “ sexual orientation or gender identity is linked! Concept, and it declines to stand on that list meant to protect religious liberty.3 this bill before. 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bostock v clayton county majority opinion 2021