Section 7

Citation: Section 7
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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because of sex, and Title VII liability necessarily followed.
  Aren’t these cases different, the employers ask, given
that an employer could refuse to hire a gay or transgender
individual without ever learning the applicant’s sex? Sup-
pose an employer asked homosexual or transgender appli-
cants to tick a box on its application form. The employer
then had someone else redact any information that could be
used to discern sex. The resulting applications would dis-
close which individuals are homosexual or transgender
without revealing whether they also happen to be men or
women. Doesn’t that possibility indicate that the em-
ployer’s discrimination against homosexual or transgender
persons cannot be sex discrimination?
  No, it doesn’t. Even in this example, the individual ap-
plicant’s sex still weighs as a factor in the employer’s deci-
sion. Change the hypothetical ever so slightly and its flaws
become apparent. Suppose an employer’s application form
offered a single box to check if the applicant is either black
or Catholic. If the employer refuses to hire anyone who
checks that box, would we conclude the employer has com-
plied with Title VII, so long as it studiously avoids learning
any particular applicant’s race or religion? 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.
  The same holds here. There is no way for an applicant to
decide whether to check the homosexual or transgender box
without considering sex. To see why, imagine an applicant
doesn’t know what the words homosexual or transgender
mean. Then try writing out instructions for who should
check the box without using the words man, woman, or sex
(or some synonym). It can’t be done. Likewise, there is no
way an employer can discriminate against those who check
the homosexual or transgender box without discriminating
in part because of an applicant’s sex. By discriminating
against homosexuals, the employer intentionally penalizes
                  Cite as: 590 U. S. ____ (2020)           19 Opinion of the Court

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