Bostock v. Clayton County, 590 U.S. 644 (2020)

Citation: Bostock v. Clayton County, 590 U.S. 644 (2020)
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

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The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. See Part III-B, infra . But the Court apparently thinks that this was because the Members were not "smart enough to realize" what its language means. Hively v. Ivy Tech Community College of Ind. , 853 F.3d 339, 357 (CA7 2017) (Posner, J., concurring). The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII's prohibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III-C, infra . And for good measure, the Court's conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law.7 Day in *1758and day out, the Commission enforced Title VII but did not grasp what discrimination "because of ... sex" unambiguously means. See Part III-C, infra .

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