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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discrimination because of “sex” still means what it has al-
ways meant. But the Court is not deterred by these consti-
tutional niceties. Usurping the constitutional authority of
the other branches, the Court has essentially taken H. R.
5’s provision on employment discrimination and issued it
under the guise of statutory interpretation.4 A more brazen
abuse of our authority to interpret statutes is hard to recall.
   The Court tries to convince readers that it is merely en-
forcing the terms of the statute, but that is preposterous.
Even as understood today, the concept of discrimination be-
cause 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 writ-
ten.” A. Scalia & B. Garner, Reading Law: The Interpreta-
tion of Legal Texts 16 (2012) (emphasis added). If every
single living American had been surveyed in 1964, it would
have been hard to find any who thought that discrimination
because of sex meant discrimination because of sexual ori-
entation––not to mention gender identity, a concept that
was essentially unknown at the time.
   The Court attempts to pass off its decision as the inevita-
ble product of the textualist school of statutory interpreta-
tion championed by our late colleague Justice Scalia, but no
one should be fooled. The Court’s opinion is like a pirate
ship. It sails under a textualist flag, but what it actually
represents is a theory of statutory interpretation that Jus-
tice Scalia excoriated––the theory that courts should “up-
date” old statutes so that they better reflect the current val-
ues of society. See A. Scalia, A Matter of Interpretation 22

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