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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men for being attracted to men and women for being at-
tracted to women. By discriminating against transgender
persons, the employer unavoidably discriminates against
persons with one sex identified at birth and another today.
Any way you slice it, the employer intentionally refuses to
hire applicants in part because of the affected individuals’
sex, even if it never learns any applicant’s sex.
   Next, the employers turn to Title VII’s list of protected
characteristics—race, color, religion, sex, and national
origin. Because homosexuality and transgender status
can’t be found on that list and because they are conceptu-
ally distinct from sex, the employers reason, they are im-
plicitly excluded from Title VII’s reach. Put another way, if
Congress had wanted to address these matters in Title VII,
it would have referenced them specifically. Cf. post, at 7–8
(ALITO, J., dissenting); post, at 13–15 (KAVANAUGH, J., dis-
senting).
   But that much does not follow. We agree that homosex-
uality and transgender status are distinct concepts from
sex. But, as we’ve seen, discrimination based on homosex-
uality or transgender status necessarily entails discrimina-
tion based on sex; the first cannot happen without the sec-
ond. Nor is there any such thing as a “canon of donut holes,”
in which Congress’s failure to speak directly to a specific
case that falls within a more general statutory rule creates
a tacit exception. Instead, when Congress chooses not to
include any exceptions to a broad rule, courts apply the
broad rule. And that is exactly how this Court has always
approached Title VII. “Sexual harassment” is conceptually
distinct from sex discrimination, but it can fall within Title
VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “moth-
erhood discrimination.” See Phillips, 400 U. S., at 544.
Would the employers have us reverse those cases on the
theory that Congress could have spoken to those problems
more specifically? Of course not. As enacted, Title VII pro-
hibits all forms of discrimination because of sex, however
20              BOSTOCK v. CLAYTON COUNTY Opinion of the Court

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